Terri Hunter v. Rapides Parish Coliseum Authority

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-784

TERRI HUNTER

VERSUS

RAPIDES PARISH COLISEUM AUTHORITY

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 247,937
HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and John E. Conery,
Judges.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Daniel E. Broussard, Jr.
Broussard, Halcomb & Vizzier
P. O. Box 1311
Alexandria, LA 71309-1311
(318) 487-4589
COUNSEL FOR DEFENDANT-APPELLEE:
Rapides Parish Coliseum Authority

G. Andrew Veazey
Bradford H. Felder
Stefini W. Salles
Huval, Veazey, Felder & Renegar, LLC
P. O. Box 80948
Lafayette, LA 70598-0948
(337) 234-5350
COUNSEL FOR PLAINTIFF-APPELLANT:
Terri Hunter

PICKETT, Judge.

Terri Hunter sued the Rapides Parish Coliseum Authority (Authority) after

the Authority terminated her employment. Ms. Hunter asserted a number of claims

against the Authority, including a whistleblower claim pursuant to La.R.S. 23:967.

The Authority filed a motion for summary judgment, alleging that Ms. Hunter’s

whistleblower claim should be dismissed because the Authority is not an employer

for purposes of the whistleblower statute. Ms. Hunter appealed. For the following

reasons, we reverse the dismissal of Ms. Hunter’s whistleblower claim and remand

the matter to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Ms. Hunter was hired by the Authority on February 21, 2013, as an office

manager. During her employment, Ms. Hunter was asked and/or instructed by her

superiors to perform a number of payroll and financial tasks that she believed were

improper. She also discovered numerous discrepancies with payroll and other

financial documentation that was prepared before she was employed by the

Authority. Ms. Hunter reported the discrepancies to the Authority’s independent

auditor and to Murphy Rachal, Chairman of the Authority, and Jimbo Thiels, the

Vice-Chairman of the Authority, during her employment. Neither Mr. Rachal nor

Mr. Thiels took action on Ms. Hunter’s report, and she reported the discrepancies

to the Rapides Parish District Attorney. A criminal investigation was instituted by

the Rapides Parish District Attorney as a result of Ms. Hunter’s reports regarding

the Authority’s financial improprieties. On May 20, 2013, the Authority

terminated Ms. Hunter’s employment.

Ms. Hunter filed this suit seeking relief under the whistleblower statute. She

alleged that her employment was terminated because she refused to engage in

financial improprieties at the direction of Mr. Rachal and/or Mr. Theil and because

she reported the financial improprieties to the appropriate officials. Ms. Hunter

also sought a writ of mandamus, directing the Authority to provide her a pre-

disciplinary hearing and a written notice of reprimand prior to taking any

disciplinary action against her, and asserted a quo warranto claim.

The Authority filed a Motion for Summary Judgment to dismiss

Ms. Hunter’s whistleblower claim on the ground that it does not meet the

definition of employer applicable to the Louisiana whistleblower statute, La.R.S.

23:967. The basis of the motion is that the definition of employer set forth in

La.R.S. 23:302(2) of the Louisiana Employment Discrimination Law (LEDL),

La.R.S. 23:301-369, applies to whistleblower claims. After a hearing held on

March 31, 2014, the trial court granted the Authority’s motion for summary

judgment and dismissed the remainder of Ms. Hunter’s claims.

Pursuant to La.Code Civ.P. art. 1917, Ms. Hunter requested that the trial

court issue written reasons for its ruling on the motion for summary judgment. The

trial court then issued Findings of the Court and Reasons for Judgment, in which it

concluded that the Authority’s basis for its motion for summary judgment was not

valid. The trial court determined, however, that Ms. Hunter was a probationary

employee and not entitled to whistleblower protection under La.R.S. 23:967.

Ms. Hunter appealed the judgment granting summary judgment in favor of

the Authority.

ASSIGNMENTS OF ERROR

In her appeal, Ms. Hunter assigns three errors with the trial court’s

judgment:

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A. The Summary Judgment that was granted to the Coliseum
Authority was violative of La.C.C.P. Art. 966(F)(1) because it is
based upon . . . grounds that were not urged by the Coliseum
Authority in its motion, and the court expressly rejected the sole
grounds [sic] urged by the Coliseum Authority in support of its
Motion.

B. There is no evidence in the record1 to suggest that Ms. Hunter was
a “probationary employee,” and even if there was, there is no
“probationary employee exception” to application of the Louisiana
Whistleblower Statute.

C. Even if there was a “probationary employee exception” to the
Louisiana Whistleblower Statute, such an exception would violate
public policy.

SUMMARY JUDGMENT

Appellate courts review summary judgments de novo, using the same

criteria applied by trial courts to determine whether summary judgment is

appropriate. Succession of Holbrook, 13-1181 (La. 1/28/14), 144 So.3d 845.

Summary judgment is favored and shall be construed “to secure the just, speedy,

and inexpensive determination of every action.” La.Code Civ.P. art. 966(A)(2). A

motion for summary judgment will be granted “if the pleadings, depositions,

answers to interrogatories, and admissions, together with the affidavits, if any,

admitted for purposes of the motion for summary judgment, show that there is no

genuine issue as to material fact, and that mover is entitled to judgment as a matter

of law.” La.Code Civ.P. art. 966(B)(2).

The party seeking summary judgment must show that no genuine issue of

material fact exists. La.Code Civ.P. art. 966(C)(1). “[I]f the movant will not bear

the burden of proof at trial,” he need not “negate all essential elements of the

adverse party’s claim,” but he must show “that there is an absence of factual

1
Ms. Hunter designated the record for appeal as provided in La.Code Civ.P. art. 2128.
This reference is the appellate record as designated by Ms. Hunter.

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support for one or more elements essential to the adverse party’s claim.” La.Code

Civ.P. art. 966(C)(2). If the movant meets his initial burden of proof, the burden

shifts to the adverse party “to produce factual support sufficient to establish that he

will be able to satisfy his evidentiary burden of proof at trial.” Id.

DISCUSSION

The whistleblower statute provides, in pertinent part: “[a]n employer shall

not take reprisal against an employee who in good faith, and after advising the

employer of the violation of law . . . [d]iscloses or threatens to disclose a

workplace act or practice that is in violation of state law.” La.R.S. 23:967(A)(1).

The whistleblower statute does not define the term “employer.”

Citing Ray v. City of Bossier, 37,708 (La.App. 2 Cir. 10/24/03), 859 So.2d

264, writs denied, 03-3214, 03-3254 (La. 2/13/04), 867 So.2d 697, the Authority

argues that the definition of employer contained in the LEDL should be used to

determine if it is an employer for purposes of Ms. Hunter’s whistleblower claims.

The Authority asserts that it is entitled to summary judgment because it is not an

employer as defined in La.R.S. 23:302(2); therefore, Ms. Hunter cannot prove she

is entitled to recover against it under La.R.S. 23:967.

The LEDL, La.R.S. 23:302(2), defines employer, in pertinent part, as:

[A] person, association, legal or commercial entity, the state, or any
state agency, board, commission, or political subdivision of the state
receiving services from an employee and, in return, giving
compensation of any kind to an employee. The provisions of this
Chapter shall apply only to an employer who employs twenty or more
employees within this state for each working day in each of twenty or
more calendar weeks in the current or preceding calendar year.

The Authority argues that Ms. Hunter’s whistleblower claims under La.R.S.

23:967 must be dismissed because it did not meet the “twenty or more employees”

requirement of La.R.S. 23:302(2) in 2013 or 2014.

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In Ray, 859 So.2d at 272, the second circuit determined:

The whistleblower statute does not define “employer;”
however, the term “employer” was precisely defined by [the]
Louisiana Employment Discrimination Law to require receipt of
services by the employee in exchange for compensation to him. La.
R.S. 23:302(2); Langley v. Pinkerton’s Inc., 220 F.Supp.2d 575
(M.D.La. 09/04/02). Specifically, “employer” is defined as “a person,
association, legal or commercial entity, the state, or any state agency,
board, commission, or political subdivision of the state receiving
services from an employee and, in return, giving compensation of any
kind to an employee.” La. R.S 23:302(2). (Emphasis added). Courts
have interpreted Section 23:302(2)’s definition of “employer” to apply
in cases where employment status is at issue. Jackson v. Xavier
University of Louisiana, 2002 WL 1482756 (E.D.La.2002), citing
Jones v. JCC Holding Co., 2001 WL 537001 (E.D.La.2001).

The first circuit also applied the definition of “employer” contained in

La.R.S. 23:302(2) in Rider v. Ambeau, 07-681 (La.App. 1 Cir. 12/21/07)

(unpublished opinion), and affirmed the dismissal of the plaintiff’s whistleblower

claims against the individual defendants sued by the plaintiff. The court concluded

that the plaintiff could not prevail on those claims because she had not proved that

the individual defendants “individually, received services from [her] and gave

compensation to [her.]” Id. at p. 4.

Ms. Hunter notes that while some Louisiana federal courts have applied the

twenty or more employees requirement of La.R.S. 23:302(2)’s definition of

employer to whistleblower claims and that Louisiana cases have cited those federal

cases when citing La.R.S. 23:302’s definition of employer in such cases, no

Louisiana state court has applied the twenty or more employees requirement to

La.R.S. 23:967 whistleblower claims. See Ray, 859 So.2d 264; Rider, 07-681.

At least one Louisiana federal court has refused to apply the twenty or more

employees requirement to a whistleblower claim. See Knighten v. State Fair of

La., No. 03-1930 (W.D.La. 3/21/07). The judge reasoned that the location of the

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definition of employer in Chapter 3-A of Title 23 of the Revised Statutes, rather

than Chapter 9 where the whistleblower statute is located, warrants the conclusion

that the definition in La.R.S. 23:302 does not apply to whistleblower claims. The

judge also observed that the majority of the cases cited by the defendant therein

had no precedential value because they were unpublished opinions. Although

there was one published opinion, the judge noted that the parties agreed the

plaintiff was not an employee; accordingly, discussion of the definition of

employer was dicta. See Langley v. Pinkerton’s, Inc., 220 F.Supp. 2d 575

(M.D.La. 2002).

The judge in Knighten concluded that the language of Section 302 indicates

the legislature intended to limit the application of the definitions therein to Chapter

3-A by: (1) stating the definitions in Section 302 are “For purposes of this

Chapter”; (2) providing “The provisions of this Chapter shall apply only to”; and

(3) further providing “This Chapter shall not apply to.”

In Anderson v. Ochsner Health System, 13-2970, p. 4 (La. 7/1/14), __ So.3d

__ (citations omitted), the supreme court addressed statutory interpretation,

explaining:

The paramount question in all cases of statutory interpretation
is legislative intent; ascertaining the reason that triggered the
enactment of the law is the fundamental aim of statutory
interpretation. The rules of statutory construction are designed to
unveil and enforce the intent of the legislature. Legislation is the
solemn expression of legislative will; thus, interpretation of a statute
involves primarily a search for the legislature’s intent.

In ascertaining the true meaning of a word, phrase, or section of
a statute, the act as a whole must be considered. When doubt exists as
to the proper interpretation of a statute, the title or preamble may be
used to determine legislative intent.

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Chapter 9 is entitled “Miscellaneous Provisions.” Section 967 is located in

Part III of Chapter 9; Part III is entitled “Interference with Individual Rights.”

Chapter 3-A is entitled “Prohibited Discrimination in Employment.” Section 302

is located in Part I of Chapter 3-A; Part I is entitled “General Provisions.” Parts II–

VII of Chapter 3-A identify the specific types of discrimination prohibited by

Chapter 3-A, e.g., age, disability, pregnancy.

The placement of Section 967 in Chapter 9, Part III, which addresses

employers’ interference with employees’ individual rights, as opposed to

employers’ discrimination against employees addressed in Chapter 3-A, indicates

that the legislature intended Section 967 to protect employee’s individual rights.

This placement does not indicate that the legislature intended for it to be treated as

a statute prohibiting discrimination as argued by the Authority. This conclusion is

strengthened when we consider: (1) the purpose of Chapter 3-A is to prohibit

discrimination; (2) the terminology contained in La.R.S. 23:302 limits its

application to Chapter 3-A; (3) the intent of Section 967 is to provide a remedy to

employees whose employers retaliate2 against them for exercising their individual

right to report the employers’ violations of state law, and (4) nothing in Chapter 9

or Section 967 indicates that the legislature intended to define employer for

purposes of those provisions by the definition contained in Section 23:302.

Considering the limiting use of “this Chapter” in La.R.S. 23:302 and the lack

of an indication in Chapter 9 and Section 967 that La.R.S. 23:302’s definition of

employer applies to Chapter 9, we decline to extend the definition as argued by the

2
“Reprisal” is defined, in pertinent part, as “a retaliatory act.” Merriam Webster
Dictionary 1000 ( 9th ed. 1991).

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Authority. Accordingly, we conclude that the Authority did not prove it is entitled

to summary judgment as set forth in its motion for summary judgment.

As stated previously, the trial court rendered summary judgment on an issue

other than the issue set forth in the Authority’s motion for summary judgment and,

in doing so, relied on evidence that was not admitted in conjunction with the

motion for summary judgment. Ms. Hunter argues the trial court violated the

provisions of La.Code Civ.P. art. 966 in granting summary judgment as it did.

Louisiana Code of Civil Procedure Article 966 (emphasis added) provides,

in pertinent part:

F. (1) A summary judgment may be rendered or affirmed only
as to those issues set forth in the motion under consideration by the
court at that time.

(2) Evidence cited in and attached to the motion for summary
judgment or memorandum filed by an adverse party is deemed
admitted for purposes of the motion for summary judgment unless
excluded in response to an objection made in accordance with
Subparagraph (3) of this Paragraph. Only evidence admitted for
purposes of the motion for summary judgment may be considered by
the court in its ruling on the motion. The court may permit
documentary evidence to be filed in the record with the motion or
opposition in any electronically stored format authorized by the local
court rules of the district court or approved by the clerk of the district
court for receipt of evidence.

We find the trial court erred in granting summary judgment on an issue not

asserted by the Authority in its motion after considering evidence that was not

admitted “for purposes of the motion for summary judgment.” La.Code Civ.P. art.

966 (F)(1)-(2). Having already determined that the Authority is not entitled to

judgment as asserted in its motion for summary judgment, we reverse the judgment

dismissing Ms. Hunter’s whistleblower claims against the Authority.

In her second and third assignments of error, Ms. Hunter requests that we

address the correctness of the trial court’s grant of summary judgment for judicial

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efficiency. Pursuant to La.Code Civ.P. art. 966(F)(1)-(2), neither the issue

presented by the Authority’s motion for summary judgment nor the evidence the

trial court relied upon to grant summary judgment is properly before this court;

therefore, the request is denied.

DISPOSITION

For the reasons set forth hereinabove, the trial court’s grant of summary

judgment is reversed, and the matter is remanded for further proceedings. All costs

are assessed to the Rapides Parish Coliseum Authority.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

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