Lakeisha Brooks v. Popeyes, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 11-1086

LAKEISHA BROOKS

VERSUS

POPEYE’S, INC., ET AL.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF ST. MARTIN, NO. 72626
HONORABLE CHARLES LEE PORTER, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Sylvia R. Cooks, Elizabeth A. Pickett, and Phyllis M. Keaty,
Judges.

Cooks, J., dissents and assigns reasons.
Thibodeaux, Chief Judge, dissents for the reasons assigned by Judge Cooks.

REVERSED.

Stanford B. Gauthier, II
Attorney at Law
1405 West Pinhook Road, Suite 105
Lafayette, LA 70503
(337) 234-0099
Counsel for Defendant/Appellant:
Atchafalaya Enterprises, Ltd.

Michael L. Barras
Attorney at Law
P. O. Box 11340
New Iberia, LA 70562-1340
(337) 369-6400
Counsel for Plaintiff/Appellee:
Lakeisha Brooks

PICKETT, Judge.

Employer appeals judgments awarding former employee damages, penalties,

and attorney fees under the Louisiana Employment Discrimination Law (LEDL).

La.R.S. 23:301-350. As discussed below, we reverse the judgments.

FACTS

Lakeisha Brooks sued her former employer, Atchafalaya Enterprises, Ltd.

d/b/a Popeye’s Famous Fried Chicken (Atchafalaya), alleging Atchafalaya violated

the LEDL. Specifically, Ms. Brooks alleged that Atchafalaya violated the

provisions of La.R.S. 23:341-42 when it refused to allow her to temporarily

transfer to a less strenuous position during her pregnancy and refused her request

to return to work after her child was born.

In her petition, Ms. Brooks asserted that she was hired by Atchalafaya in

December 2006 as an assistant store manager and that at or about that time, she

became pregnant. Ms. Brooks also asserted that in May 2007, when she was seven

months pregnant, she requested that she be allowed to perform light-duty work

because of her pregnancy-related limitations, and her request was accepted. She

further asserted, however, that one week later, she was required to go on pregnancy

leave and to return her store keys. Ms. Brooks next alleged in her petition that

initially, after she began her pregnancy leave, her position remained open, but it

was later filled with a non-pregnant employee. She also alleged that when she

sought to return to work, she was informed there was “no room for her” at any of

Atchafalaya’s stores.

On Friday, October 2, 2009, this matter was tried on the merits. After

Ms. Brooks completed her presentation of evidence, Atchafalaya made an oral

motion for involuntary dismissal, arguing Ms. Brooks had not proved that it was an

employer for the purposes of the LEDL; therefore, her claims should be denied.

The trial court did not rule on the motion at that time but instructed the parties to

submit post-trial briefs.

After consideration of the parties’ post-trial briefs, the trial court issued

Findings of Fact and Reasons for Judgment in which it determined that

Atchafalaya was an employer as defined by the LEDL. The trial court further

found Atchafalaya had discriminated against Ms. Brooks on the basis of her

pregnancy in violation of the LEDL and awarded her $15,000 in general damages,

$20,800 in lost wages, as well as attorney fees, judicial interest from the date of

judicial demand, and all costs of the proceeding. A judgment in favor of

Ms. Brooks was signed January 10, 2011. After a hearing on the issue of attorney

fees, the trial court awarded Ms. Brooks $12,000 in attorney fees, judgment for

which was signed September 17, 2010.

Atchafalaya appealed the two judgments.

ASSIGNMENTS OF ERROR

In its assignments of error, Atchafalaya asserts the trial court committed

manifest error in:

1. Finding that Atchafalaya is considered an “employer” under
Louisiana Revised Statutes 23:341, as no evidence was introduced
to prove that Atchafalaya employed more than twenty-five
employees within Louisiana for each working day in each of
twenty or more calendar weeks in the current or preceeding
calendar year as required by the statute.

2. Finding that Brooks satisfied her burden of proof under the
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817
(1973) test.

3. Finding that Atchafalaya discharged Brooks for a discriminatory
reason.

4. Failing to find that Brooks failed to mitigate her damages and
willfully remained unemployed when testimony concluded that
multiple positions were available to her.

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DISCUSSION

Did Ms. Brooks Prove Atchafalaya was an Employer under the LEDL?

Atchafalaya moved to dismiss Ms. Brooks’ claims, urging that she had not

proved it was an employer as defined in La.R.S. 23:341 because she had not

proved it “employ[ed] more than twenty-five employees within this state for each

working day in each of twenty or more calendar weeks in the current or preceding

calendar year,” as required by La.R.S. 23:341(A). Counsel for Ms. Brooks

opposed the motion, arguing “it’s a matter of fact that . . . [Popeye’s] does meet the

requirement.” Counsel also indicated that he would recall Popeye’s representative

to ask him that question. The trial court, however, instructed the parties to address

the issue in post-trial briefs and took the matter under advisement.

In its Findings of Fact and Reasons for Judgment, the trial court concluded

that involuntary dismissal was not appropriate under La.Code Civ.P. art. 1672(B)

which provides for dismissal of the action if “the plaintiff has shown no right to

relief.” The trial court’s conclusion is based on Atchafalaya’s written response to

Interrogatory No. 10 which was propounded to it by Ms. Brooks. Interrogatory

No. 10 read: “For the period between December 1, 2006 and August 31, 2007,

please identify the name, address, and telephone number of each and every

individual who was employed at the store location where Lakeisha Brooks was

employed.” In response, Atchafalaya identified 176 employees by name and

address.

After reviewing this information, the trial court stated (emphasis added):

Atchafalaya operated two Popeye’s franchises and a service station
under its company name. Atchafalaya failed to submit any evidence
in rebuttal to this submission. This court finds the evidence sufficient
to establish a prima facie case for jurisdiction establishing that
Atchafalaya employed more than 25 employees within this state for
each working day within twenty calendar weeks for the period
December 1, 2006 [through] August 31, 2007.
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The trial court cited two federal court decisions for its conclusion that

Ms. Brooks satisfied her burden of proving Atchafalaya was an employer under the

LEDL. Relying on Weller v. Cromwell Oil Co., 504 F.2d 927 (6th Cir. 1974), and

Data Disc, Inc. v. Systems Technology Associates, Inc. 557 F.2d 1280 (9th Cir.

1977), the trial court determined that Ms. Brooks made a prima facie case of

jurisdiction by “[demonstrating] facts which support a finding of jurisdiction in

order to avoid a motion to dismiss.” Unlike this case, the issue in Weller, 504 F.2d

927, and Data Disc, 557 F.2d 1280, was whether nonresident defendants had

sufficient contacts with the state in which they were sued in order for the courts to

exercise personal jurisdiction over them, not whether the plaintiffs proved the

elements of a claim for discrimination.

Louisiana courts look to federal jurisprudence interpreting Title VII of the

Civil Rights Act of 1964 §§ 701-705, as amended, 42 U.S.C. §§ 2000e-2000e-4, to

interpret the LEDL because it contains similar prohibitions against discrimination.

King v. Phelps Dunbar, L.L.P., 98-1805 (La. 6/4/99), 743 So.2d 181; see also

Bustamento v. Tucker, 607 So.2d 532 (La.1992). As the trial court’s reasons

indicate, some federal appellate courts have considered the number-of-employees

requirement of Title VII of the Civil Rights Act of 1964 to be jurisdictional in

nature. See Weller, 504 F.2d 927; Data Disc, 557 F.2d 1280. To the contrary,

other courts have considered the requirement to be substantive. See Arbaugh v.

Y&H Corp., 380 F.3d 219 (5th Cir. 2004).

The U.S. Supreme Court granted certiorari in Arbaugh and determined that

“the threshold number of employees for application of Title VII is an element of a

plaintiff’s claim for relief, not a jurisdictional issue.” Arbaugh v. Y&H Corp., 546

U.S. 500, 516, 126 S.Ct. 1235, 1245 (2006). Accordingly, Ms. Brooks had to

show that Atchafalaya employed “more than twenty-five employees within this
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state for each working day in twenty or more calendar weeks in the current or

preceding calendar year” to prove Atchafalaya was an employer subject to the

LEDL. La.R.S. 23:341(A).

Atchafalya’s response to Interrogatory No. 10 did not establish that

Atchafalaya employed more than twenty-five employees within the state for any

working day during any year, and Ms. Brooks did not present any other evidence

on this issue. Therefore, she did not prove Atchafalaya was an employer subject to

the LEDL.

Issues regarding the sufficiency of evidence are legal in nature. Edwards v.

Ford Motor Co., 06-101 (La.App. 3 Cir. 6/21/06), 934 So.2d 221, writ denied, 06-

1847 (La. 10/27/06), 939 So.2d 1282. Appellate courts review questions of law to

determine if the trial court’s ruling was legally correct. Id. Ms. Brooks did not

prove the LEDL applies to her claims and did not prove any other basis upon

which she is entitled to judgment against Atchafalaya. Accordingly, the trial

court’s judgments against Atchafalaya are legally incorrect and must be reversed.

DISPOSITION

The judgments of the trial court in favor of Lakeisha Brooks are reversed.

All costs are assessed to Lakeisha Brooks.

REVERSED.

5

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

11-1086

LAKEISHA BROOKS

VERSUS

POPEYES, INC., ET AL.

COOKS, J., Dissents.

Apparently, the majority attempts to distinguish the “weight of un-rebutted

prima facia evidence” in civil rights cases depending on whether such evidence is

used in establishing the court’s jurisdiction to hear the case versus plaintiff’s

burden to prove each element of a claim. Finding that the U.S. Supreme Court has

said that “the threshold number of employees for application of Title VII is an

element of a plaintiff’s claim for relief, not a jurisdictional issue,” the majority

concludes that plaintiff did not prove her employer hired 25 or more people at the

time of the alleged discrimination. The only thing wrong with the majority’s

conclusion is it is legally wrong. It is well settled law in Louisiana that “prima

facia” evidence left un-rebutted is sufficient to carry ones ultimate burden of proof

in establishing an element of a claim, which is exactly what occurred in this case.

After plaintiff completed her case in chief, defendant moved orally for involuntary

dismissal of the case—that motion was apparently deferred to the merits.

Defendant did nothing else gambling apparently that “technicality” would win the

case as opposed to presenting rebuttal evidence. Our courts have long held that

prima facia evidence to prove an essential element of a claim is sufficient if un-

rebutted. Such evidence establishes a “presumption” which is weighted in

plaintiff’s favor that the fact alleged is true and places a burden on defendant to

move forward with evidence rebutting the “presumed fact.” Without such rebuttal,

the trial court is permitted to deem the fact sufficiently proven. See Middleton v.

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Humble, 172 So. 542 (La. App. 2nd Cir. 1937); Mc Corkie v. Service Cab Co., Inc.

305 So. 2d 589 (La. App. 4th Circuit, l974).

The Arbaugh case cited by the majority adds nothing to the present

discourse. That case simply says the “employee numerosity” requirement in a

Title VII case is not jurisdictional—the lack of proof at the outset that the

employer employs 25 employees will not preclude the court from hearing the case.

None of the parties here challenged the jurisdiction of the 16th judicial district

court to hear this case; and Arbaugh did not utter one word on the weight a

Louisiana court should accord prima facia evidence in establishing the numerosity

element when judging the merits of a discrimination claim under Title VII. Its

reference here, therefore, stands for nothing.

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