Robert Lowry and Lenny Williamson v. Dresser, Inc.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-1196

ROBERT LOWRY AND LENNY WILLIAMSON

VERSUS

DRESSER, INC., ET AL

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 214,764
HONORABLE BRUCE C. BENNETT, JR., DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of Oswald A. Decuir, Glenn B. Gremillion, and Elizabeth A. Pickett,
Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Philip Gardiner Hunter
Hunter & Morton
P. O. Box 11710
Alexandria, LA 71315-1710
Counsel for Plaintiffs-Respondents:
Robert Lowry and
Lenny Williamson

Henry Philip Julien, Jr.
The Kullman Firm
P. O. Box 60118
New Orleans, LA 70163
Counsel for Defendants-Applicants:
Dresser Industries, Inc.
Richard Fentem and
Kurt Hensley

Robert Bruce Macmurdo
Attorney at Law
341 St. Charles Street
Baton Rouge, LA 70802
Counsel for Plaintiffs-Respondents:
Robert Lowry and
Lenny Willianson

Samuel Zurik III
Robert P. Lombardi
The Kullman Firm
P. O. Box 60118
New Orleans, LA 70163
Counsel for Defendants-Applicants:
Dresser Industries, Inc.
Richard Fentem and
Kurt Hensley

Pickett, Judge.

FACTS

Plaintiffs, Robert Lowry and Lenny Williamson, were terminated from their

employment with Dresser, Inc. and they subsequently filed suit against Relators

alleging age discrimination. Relators filed an exception of no cause of action and

moved for dismissal of the individual defendants, Richard Fentem and Kurt Hensley.

Following a hearing held on August 9, 2004, the trial court denied Relators’

exception and motion. Relators now seek review of the trial court’s ruling.

Relators’ writ was filed timely.

DISCUSSION

Relators’ writ contains two assignments of error: 1) the trial court erred in

denying Femtem and Hensley’s exception of no cause of action because La.R. S.

51:2256 no longer states a cause of action for retaliation, and 2) in refusing to

dismiss Fentem and Hensley as individual defendants because no individual liability

exists under La.R.S. 51:2256. In Plaintiffs’ original petition, they allege that Dresser

violated Louisiana laws prohibiting age discrimination in employment and that

Fentem, the chief executive officer for Dresser, along with Hensley, aided and

abetted Dresser in violating La.R.S.51:2256 and 51:2231 by participating in the

decision by which Plaintiffs were laid off on the basis of age. Plaintiffs maintain

further that La.R.S. 51:2264 authorizes an action against a non-employer for aiding

and abetting a corporate employer to engage in discriminatory acts.

Louisiana Revised Statutes 51:2256 provides:

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It shall be an unlawful practice for a person or for two or more
persons to conspire:

(1) To retaliate or discriminate in any manner against a
person because he has opposed a practice declared
unlawful by this Chapter, or because he has made a
charge, filed a complaint, testified, assisted, or
participated in any manner in any investigation,
proceeding, or hearing under this Chapter.

(2) To aid, abet, incite, compel, or coerce a person to
engage in any of the acts or practices declared unlawful by
this Chapter.

(3) To obstruct or prevent a person from complying with
the provisions of this Chapter or any order issued
thereunder.

(4) To resist, prevent, impede, or interfere with the
commission, or any of its members or representatives, in
lawful performance of duty under this Chapter.

(Emphasis added.)

As noted by Relators, the “chapter” to which the statute refers is known as the

Louisiana Human Rights Act (LHRA) which prohibits unlawful discriminatory

practices in public accommodations and advertising public accommodations (La.R.S.

51:2247), against breast feeding mothers (La.R.S. 51:2247.1), by financial

institutions in providing financial services (La.R.S. 51:2254), and in credit

transactions (La.R.S. 51:2255). Sections 2242 through 2245, which described and

prohibited discriminatory employment practices by employers, were repealed by the

legislature in 1997, and provisions relating to prohibited discrimination in

employment are now found in La.R.S. 23:301 et sequitur, the Louisiana Employment

Discrimination Law (LEDL). The problem encountered in the case sub judice,

however, is that the LEDL does not contain its own retaliation provision. As a

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result, plaintiffs argue that their employment discrimination claim can still be

brought under LA.R.S. 51:2256.

There are no reported Louisiana cases which have construed La. 51:2256 since

the 1997 amendments. There are, however, several federal cases which provide

guidance. In the instant case, the trial court agreed with Plaintiffs’ contention that

La.R.S. 51:2256 provides a cause of action for their employment discrimination

claim. In deciding same, the trial court relied on Miller v. American General

Finance Corp., 2002 W.L. 2022536 (E.D.La. Sept. 4, 2002). In Miller, the

defendants argued that Miller could not state a claim against them under the LCHRA

because the statute did not provide a cause of action against employees in suits

alleging retaliation. The court noted that the anti-retaliation provisions remain in the

LCHRA only and that La.R.S. 51:2232(12) defines an unlawful practice as “a

discriminatory practice in connection with employment.” The court concluded that

La.R.S. 51:2256 still applies to the employment discrimination context.

Relators contend that the court’s attempt in Miller to address the issue failed

to account for the clear statement of legislative intent contained in the statutory notes

or the conflict with various LEDL provisions that are created by allowing

employment discrimination claims under La.R.S. 51:2256. As noted by Relators,

since the Miller decision , district court judges in the Eastern District have repeatedly

held that individuals can no longer assert claims for employment discrimination

under Title 51. Thus, relators argue that Miller has been subsequently overruled.

The most significant of these cases is Smith v. Parish of Washington, 318 F.

Supp.2d 366 (E.D.La. 3/26/04), wherein the court set forth a thorough summation

of the Human Rights Act, including the history and legislative intent of same. The

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court specifically addressed the issue of whether or not La.R.S. 51:2256 continues

to apply to employment discrimination after the 1997 revisions. The court concluded

“that as a matter of law, section 51:2256 no longer applies to unlawful employment

discrimination.” The court reasoned as follows:

In the new Employment Discrimination Law, the legislature included
anti-retaliation provisions in the sections addressing age and sickle-cell
trait discrimination. Had the legislature intended to include parallel
provisions in the other sections, they would have done so. There is no
evidence to support the contention that the legislature intended section
51:2256 to apply to some sections of the new Employment
Discrimination Law and not to others, simply by virtue of the fact that
some sections do not contain anti-retaliation provisions. On the
contrary, the fact that some sections do contain such provisions
indicates that the legislature intended not to include similar provisions
in the other sections. This interpretation is buttressed by the fact that
the sections specifically addressing employment discrimination in the
Human Rights Act were repealed. And the inclusion of definitions
pertaining to employment discrimination in a statute in which
substantive employment discrimination provisions were repealed does
not create causes of action: it simply created confusion.

Id. At 373. The court stated further that “liability under La.R.S. 51:2256 is limited

to retaliation against practices made unlawful under the Louisiana Human Rights Act

and does not extend to provisions repealed from that Act and now incorporated into

La.R.S. 23:302.”

While federal case law is not controlling, we agree with the court’s reasoning

in Smith and find that La.R.S. 51:2256 no longer provides a viable cause of action

for the plaintiffs. Accordingly, we find that the trial court erred in denying Relators’

exception of no cause of action. Relators’ remaining assigned error is moot.

CONCLUSION

The trial court erred in denying Relators’ exception of no cause of action and

motion to dismiss. The 1997 amendment to the Louisiana Human Rights Act

effectively repealed sections 2242 through 2245 of Title 51 which described and

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prohibited discriminatory employment practiced by employers. Provisions relating

to prohibited discrimination in employment are now found in the Louisiana

Employment Discrimination Law, La.R.S. 23:301 et sequitur. Accordingly,

La.R.S.51:2256 no longer applies to unlawful employment discrimination, and thus,

plaintiffs have not set forth a valid cause of action. The trial court’s ruling is

reversed and set aside and plaintiffs’ action is hereby dismissed.

WRIT GRANTED AND MADE PEREMPTORY.

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