Pashine Broussard v. Our Lady of Lourdes Regional Medical Center, Inc.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 17-1072

PASHINE BROUSSARD

VERSUS

OUR LADY OF LOURDES REGIONAL
MEDICAL CENTER, INC., ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20120203
HONORABLE MICHELLE M. BREAUX, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Candyce G.
Perret, Judges.

AFFIRMED.

Gloria A. Angus
Angus Law Firm, LLC
P. O. Box 2337
Opelousas, LA 70571
(337) 948-8800
COUNSEL FOR PLAINTIFF/APPELLANT:
Pashine Broussard

Melissa Morse Shirley
Breazeale, Sachse & Wilson
P. O. Box 3197
Baton Rouge, LA 70821-3197
(225) 387-4000
COUNSEL FOR DEFENDANT/APPELLEE:
Our Lady of Lourdes Regional Medical Center

EZELL, Judge.

Pashine Broussard appeals the decision of the trial court below granting

summary judgment in favor of Our Lady of Lourdes Reginal Medical Center

(hereinafter “Lourdes”), dismissing her claims of retaliatory discharge. For the

following reasons, we affirm the decision of the trial court.

Ms. Broussard was employed at Lourdes as a respiration therapist. In 2006, she

suffered a work place accident which resulted in injury to her back. At all times since

the accident, Lourdes paid Ms. Broussard’s medical bills, including bills for a surgery

in 2010. After the accident, Ms. Broussard was released to light-duty, meaning that

she could not perform several of the tasks required of her job, as Ms. Broussard

herself admitted. However, Lourdes accommodated her restrictions in several ways,

including allowing other employees to perform tasks Ms. Broussard could no longer

do. Ms. Broussard and Lourdes maintained these accommodations from the time of

the accident in 2006 until May of 2010. At that time, Ms. Broussard’s surgeon

recommended surgery for her back and took her off of work completely. Ms.

Broussard met with Lourdes to discuss workers’ compensation indemnity benefits, but

she was ultimately told that her time to seek such benefits had expired, as four years

had passed since the injury. Instead, Ms. Broussard was approved to take a leave of

absence and told that she had accumulated leave time that would expire in January of

2011. Ms. Broussard signed an acknowledgement of this leave time on May 28, 2010.

Ms. Broussard then filed a workers’ compensation claim for indemnity benefits,

which was denied on the basis of prescription. That decision is not before this court.

Ms. Broussard had back surgery in July of 2010. She was not permitted to

return to work, in any capacity, by her doctor until December of that year. At that

time, she was released to light-duty work but limited to four hours of work a day.

Thus, she was never fully released to return to work for Lourdes, or anyone else.

When her leave time expired without her being able to return to work, Lourdes

terminated her employment. Ms. Broussard then filed the current suit, alleging that

the termination was in retaliation for her filing a workers’ compensation claim, rather

than for the expired leave. Lourdes filed a motion for summary judgment, which was

granted by the trial court below. From that decision, Ms. Broussard appeals.

On appeal, Ms. Broussard asserts two assignments of error. First, she claims

that the trial court erred in granting Lourdes’ motion for summary judgment, where

she alleges genuine issues of material fact exist. Finally, she claims that the trial court

erred in reconsidering her motion for new trial, which had been granted by the trial

court after the granting of Lourdes’ motion for summary judgment.

Summary judgment procedure is favored and “is designed to secure the just,

speedy, and inexpensive determination of every action . . . . and shall be construed to

accomplish these ends.” La.Code Civ.P. art 966(A)(2). In reviewing the trial court’s

decision on a motion for summary judgment, this court applies a de novo standard of

review. Jackson v. City of New Orleans, 12-2742, 12-2743 (La. 1/28/14), 144 So.3d

876, cert. denied, ____ U.S. ____, 135 S.Ct. 197 (2014).

The burden of proof is on the mover unless the mover will not bear the burden

of proof at trial, in which case the mover is not required to negate all essential

elements of the adverse party’s claim, but only to point out to the court the absence of

factual support for one or more of the elements necessary to the adverse party’s claim.

La.Code Civ.P. art. 966(D)(1). “The burden is on the adverse party to produce factual

support sufficient to establish the existence of a genuine issue of material fact or that

the mover is not entitled to judgment as a matter of law.” Id.

“After an opportunity for adequate discovery, a motion for summary judgment

shall be granted if the motion, memorandum, and supporting documents show that

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there is no genuine issue as to material fact and that the mover is entitled to judgment

as a matter of law.” La.Code Civ.P. art. 966(A)(3).

A fact is material if it potentially ensures or precludes recovery,
affects a litigant’s ultimate success, or determines the outcome of the
legal dispute. A genuine issue of material fact is one as to which
reasonable persons could disagree; if reasonable persons could reach only
one conclusion, there is no need for trial on that issue and summary
judgment is appropriate.

Jackson, 144 So.3d at 882.

In ruling on a motion for summary judgment, the judge’s role is
not to evaluate the weight of the evidence or to determine the truth of the
matter, but instead to determine whether there is a genuine issue of
triable fact. Hines [v. Garrett], 2004-0806 at 1, [(La. 6/25/04)], 876
So.2d [764] at 765.

Vanner v. Lakewood Quarters Ret. Cmty., 12-1828, p. 6 (La. App. 1 Cir. 6/7/13), 120

So.3d 752, 755.

Louisiana Revised Statutes 23:1361(B) states that “[n]o person shall discharge

an employee from employment because of said employee having asserted a claim for

benefits under the provisions of this Chapter. . . . Nothing in this Chapter shall

prohibit an employer from discharging an employee who because of injury can no

longer perform the duties of his employment.” “[A]n employer is not precluded from

terminating an employee who has filed a claim; he is precluded from firing the

employee because of the claim.” King v. Dialysis Clinic Inc., 04-2116, p. 7 (La.App.

4 Cir. 1/4/06), 923 So.2d 177, 182. “To maintain an action for retaliatory discharge

under La.R.S. 23:1361, the employee must prove, by a preponderance of the evidence,

that he was terminated because he asserted a claim for workers’ compensation

benefits.” Graham v. Amberg Trucking, Inc., 07-573, p. 4 (La.App. 3 Cir. 10/31/07),

969 So.2d 718, 721 (citing Penn v. La.-1 Gaming, 06-928 (La.App. 5 Cir. 4/11/07),

954 So.2d 925). “The [workers’ compensation retaliation] statute clearly provides that

termination because of the employee’s inability to work due to injury is not

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retaliatory.” McDonald v. Television Mgmt., Inc., 93-2493, pp. 6-7 (La.App. 4 Cir.

9/29/94), 643 So.2d 802, 805, writ denied, 94-2642 (La. 12/16/94), 648 So.2d 393.

Ms. Broussard last worked for Lourdes in May of 2010 and had surgery in July

of that year, which Lourdes paid for. Lourdes produced evidence that Ms. Broussard

knew in May of 2010 that her accumulated leave would expire January 10, 2011. Ms.

Broussard signed a form on May 28, 2010, acknowledging such. She was restricted

from working at all by her doctor that same May. She never returned to work at

Lourdes, or seemingly, anywhere else. In December of 2010, she was released to

part-time work but limited to four hours a day by her doctor. She freely admitted in

her deposition testimony that she was never released to full-time work.1

Lourdes produced an affidavit from Jennifer Trahan, the assistant vice-

president of human resources for Lourdes. She stated that Lourdes terminated Ms.

Broussard for expiration of her leave only and that nineteen other employees had been

fired for the same reason during 2010-2011. Lourdes also produced affidavits from

Paula Jenkins and Douglas Greene stating that the termination was for expired leave

only and that Ms. Broussard was treated in accordance with hospital policy.

It was incumbent upon Ms. Broussard to produce factual support sufficient to

establish that she would be able to satisfy her evidentiary burden of proof at trial, i.e.

that the reason for her discharge was the filing of her workers’ compensation claim.

Ms. Broussard gave no such evidence of retaliation whatsoever. In fact, the evidence

shows that Lourdes was very accommodating to Ms. Broussard after her injury, in

several ways for a period of years, despite the fact that she could no longer perform

many of her job duties. It is clear from the record that Ms. Broussard was, and

remains, unable to perform the duties of her job on a full-time basis. Her termination

1
In fact, Ms. Broussard was again taken off work, even at part-time status, roughly one
month after her termination.
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was for that fact, coupled with the expiration of all her accumulated leave time. In

light of the record before this court, we find Ms. Broussard has failed to set forth any

evidence in support of her claim for retaliatory discharge. As such, the trial court’s

granting Lourdes’ motion for summary judgment was not erroneous.

Ms. Broussard next claims that the trial court abused its discretion in granting

Lourdes’ motion for reconsideration and dismissing her motion for new trial. Again,

we disagree.

Ms. Broussard’s claims in this assignment of error are puzzling at best and

approaching frivolity at worst. After the trial court granted Lourdes’ motion for

summary judgment, Ms. Broussard filed a motion for new trial alleging that the

motion for summary judgment was filed untimely. The record not only plainly shows

this assertion to be incorrect, but the record also shows that Ms. Broussard failed to

even serve Lourdes with her motion for new trial. The trial court initially granted the

motion for new trial, apparently based on Ms. Broussard’s incorrect, ex parte

assertions. After Lourdes discovered the motion had been granted, it sought

reconsideration and established proof of timely filing and service of the original

motion for summary judgment. Thereafter, the trial court granted the motion to

reconsider, denied the motion for new trial, and re-entered the granting of the motion

for summary judgment. Ms. Broussard now claims, without support, that the motion

for new trial granted by the trial court was a final judgment and that Lourdes’ sole

recourse was to seek writ review, rather than reconsideration.

“A judgment that does not determine the merits but only preliminary matters in

the course of the action is an interlocutory judgment.” La.Code Civ.P. art. 1841. The

judgment Ms. Broussard claims was final merely granted a new trial on the motion for

summary judgment. Such a judgment “does not determine any of the merits of this

issue and is, therefore, interlocutory in nature.” Alvarez v. LeBlanc, 08-247, p. 4
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(La.App. 5 Cir. 9/30/08), 996 So.2d 517, 519. An interlocutory judgment may be

reconsidered or revised upon proper motion at any time until the rendition of a final

judgment. See Magallanes v. Norfolk S. Ry. Co., 09-605 (La.App. 4 Cir. 10/14/09), 23

So.3d 985. The trial court not only had the authority to reconsider Ms. Broussard’s

motion for new trial, but, in light of the clear evidence that the motion for summary

judgment was timely served and filed, the trial court was completely correct in doing

so and in reversing its decision to grant the ex parte motion for new trial. This

assignment of error is utterly devoid of merit.

For the above reasons, the decision of the trial court below is hereby affirmed.

Costs of this appeal are hereby assessed against Ms. Broussard.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2-16.3.

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