Alcorn v. City of Baton Rouge, 2002 CA 0952.

• Decision Date: 27 June 2003
• Docket Number: 2002 CA 0952.,Consolidated With 2002 CA 0953.
• Citation: 851 So.2d 1194
• Parties: WILLIAM ALCORN v. CITY OF BATON ROUGE, THROUGH THE BATON ROUGE POLICE DEPARTMENT ALBERT BURNS v. CITY OF BATON ROUGE, THROUGH THE BATON ROUGE POLICE DEPARTMENT
• Court: Court of Appeal of Louisiana — District of US

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WILLIAM ALCORN v. CITY OF BATON ROUGE, THROUGH THE BATON ROUGE POLICE DEPARTMENT

ALBERT BURNS v. CITY OF BATON ROUGE, THROUGH THE BATON ROUGE POLICE DEPARTMENT

2002 CA 0952.

Consolidated With 2002 CA 0953.

Court of Appeals of Louisiana, First Circuit.

Judgment Rendered June 27, 2003.

On Appeal From The Nineteenth Judicial District Court, Parish Of East Baton Rouge State Of Louisiana, Number 431,647 And Number 432,170 Division I, Honorable Michael R. Caldwell, Judge.

Jill L. Craft, Baton Rouge, Louisiana, Counsel for Plaintiffs/Appellees, William Alcorn and Albert Burns.

Arlene C. Edwards, Baton Rouge, Louisiana, Counsel for Defendant/Appellant, City of Baton Rouge, through, The Baton Rouge Police Department.

BEFORE: FOIL, McCLENDON AND KLINE¹, JJ.

McCLENDON, Judge.

This case involves allegations of workplace racism directed at two African-American police officers employed by the Baton Rouge Police Department. By virtue of this appeal, the City of Baton Rouge, through the Baton Rouge Police Department (hereinafter "the City") contests a judgment awarding damages to said retired police officers for claims of racial discrimination, racial harassment and unlawful retaliation. For the following reasons, we reverse in part and affirm in part.

FACTS AND PROCEDURAL HISTORY

Albert Burns, Sr., an African-American male, joined the Baton Rouge Police Department as a police officer in 1972 and retired in 1998. He filed suit against the City on October 9, 1996, alleging age discrimination, race discrimination and racial harassment.²

In 1973, William Duplessis Alcorn, Jr., an African-American male, joined the Baton Rouge Police Department as a police officer. Mr. Alcorn retired in 1993 due to disability. Mr. Alcorn sued the City on September 24, 1996, alleging age and race discrimination, as well as racial harassment. Additionally, Mr. Alcorn alleged unlawful retaliation.

The suits were consolidated for trial. On May 13, 1999, the City filed a motion for summary judgment, asserting the claims were prescribed. The trial court granted the motion and rendered judgment, dismissing both plaintiffs' claims in their entirety. The plaintiffs appealed that judgment. On appeal, this court affirmed the dismissal of the claims of age discrimination, determined that summary judgment was inappropriate as to the claim of retaliation and the claims of racial discrimination and harassment, and remanded the case for trial of those issues.

Alcorn v. City of Baton Rouge c/w Burns v. City of Baton Rouge,

99-2464, 99-2465 (La.App. 1 Cir. 11/3/00) (unpublished opinion).

The matter was tried before a jury on January 7-14, 2002. After trial, the jury entered a verdict in favor of the plaintiffs. The trial court rendered judgment in accordance with that verdict, awarding Mr. Alcorn $300,000 for race-based harassment, $200,000 for racial discrimination, and $50,000 for unlawful retaliation. It further rendered judgment in favor of Mr. Burns in the sums of $300,000 for race-based harassment and $200,000 for racial discrimination. The City appeals.

PRESCRIPTION

On appeal, the City asserts that the plaintiffs' claims of racial harassment and discrimination have prescribed. However, the City did not file an exception of prescription in the trial court or in this court. See LSA-C.C.P. arts. 927, 928B, and 2163. Rather, it filed a motion for summary judgment prior to the commencement of trial, asserting therein that the matters before the trial court had prescribed. From a judgment granting the motion and dismissing the plaintiffs' claims in their entirety, the plaintiffs appealed. This court affirmed the dismissal of the plaintiffs' claims of age discrimination, reversed the dismissal of the plaintiffs' remaining claims,³ and remanded the case for trial of the remaining claims.

Alcorn v. City of Baton Rouge c/w Burns v. City of Baton Rouge,

99-2464, 99-2465 (La.App. 1 Cir. 11/3/00) (unpublished opinion). The City did not seek review of our decision at the Louisiana Supreme Court. The unsuccessful assertion that the claims of racial discrimination, harassment and retaliation were untimely as grounds for seeking a summary judgment prior to the trial on the merits does not provide a procedural vehicle for appellate review of the issue of prescription on the entire record, an issue not considered by the trial court.

Furthermore, assigning as error on appeal that the actions have prescribed is also insufficient to raise the issue, which must be presented in a formal pleading.

LaBove v. Resource Transp. Co.,

625 So.2d 583, 587 (La.App. 3 Cir. 1993). Therefore, the defendant failed to properly raise an exception of prescription either before the trial court or before this court. For these reasons, we do not reach the issue of prescription.

JURY CHARGES AND VERDICT FORM

The jury awarded each plaintiff damages for his claim of discrimination. On appeal, the City asserts that parts of the jury instructions and the jury interrogatories inaccurately present the claim of discrimination to the jury. At issue is the following excerpt from the jury instructions:

To prevail on a claim for discrimination, each plaintiff must prove that: 1) he was denied promotional opportunities, or opportunities for advancement, and/or was excluded from training, and 2) race was a motivating factor in the employer's decision to deny those opportunities.

. . . .

If you find that the plaintiffs have proved each of these elements in support of their claims, you will then consider whether the defendant has shown by a preponderance of the evidence that the plaintiffs would not have been promoted or given additional training for other reasons apart from the plaintiffs' race. An employer may fail to promote and deny training to an employee for any reason, good or bad, in its business judgment as long as the decision was made without a discriminatory motive.

If you find that the defendant has proved by a preponderance of the evidence that it had a non-discriminatory explanation for its decision, you will then consider whether the plaintiff has shown by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. If you do not believe the reasons put forth by the defendant, you are permitted, but not compelled, to infer that the defendant's actions constituted intentional discrimination. If you find the defendant's explanation to be false, you may reasonably infer that it is attempting to cover up a discriminatory purpose and may find the defendant liable to Mr. Alcorn and/or Mr. Burns for discrimination.

The portions of the verdict form at issue with respect to both Mr. Burns and Mr. Alcorn also concern their claims of discrimination. In all essential aspects, the questions and answers are identical in both sets of questions. Therefore, we will include only one set of the pertinent questions in this opinion. The pertinent parts of the jury verdict form provide:

B. DISCRIMINATION

8. Was Mr. Alcorn denied promotional opportunities, or opportunities for advancement, and/or was he excluded from training?

                  YES XXX (12-0)      NO
                

(If your answer was "YES", proceed to Question 9 If your answer was "NO", skip to Question 11)

9. Was Mr. Alcorn's race a motivating or determinative factor that prompted the Baton Rouge Police Department to take action?

                  YES XXX (12-0)      NO
                

(If your answer is "YES", proceed to Question 10 If your answer is "NO", skip to Question 11)

10. What amount, if any, will fairly compensate Mr. Alcorn for damages resulting from racial discrimination? $200,00.00

The City avers that the jury instructions constitutes plain error as they erroneously characterize the plaintiffs' allegations of discrimination as claims for the denial of promotional opportunities and the exclusion of training, without stating that such are not necessarily actionable under Title VII as tangible employment actions and that the employer may provide a legitimate reason for the denials, which if not found to be pretextual absolves them from liability. The City also asserts that the jury interrogatories form erroneously failed to provide the jury with a question concerning pretext.

It is undisputed that the City did not object to the jury instruction or to the jury interrogatories at trial. It is well settled that a party cannot claim improper jury charges as error where he fails to timely object to the charges. LSA-C.C.P. art. 1793;

Levet v. Calais & Sons, Inc.,

514 So.2d 153, 156-7 (La.App. 5 Cir. 1987). This rule applies to jury interrogatories.

State, Dept. of Transp. and Dev. v. McMillion Dozer Serv., Inc.,

93-590, p. 3 (La.App. 5 Cir. 5/31/94), 639 So.2d 766, 768, writs denied, 94-2345, 94-2348 (La. 11/29/94), 646 So.2d 399;

Keith v. Gallioto,

592 So.2d 510, 512 (La.App. 5 Cir. 1991). Therefore, in most circumstances, the City would be procedurally barred from appellate review of said jury instructions and interrogatories.

However, courts have held that where the jury instructions or interrogatories contain a "plain and fundamental" error, the contemporaneous objection requirement is relaxed and appellate review is not prohibited.

Berg v. Zummo,

00-1699, p. 13 (La. 4/25/01), 786 So.2d 708, 716 n. 5;

Trans-Global Alloy Ltd v. First Nat'l Bank,

583 So.2d 443, 448 (La. 1991). The adequacy of the instruction "must be determined in light of the instruction as a whole."

Belle Pass Terminal, Inc. v. Jolin, Inc.,

92-1554, p. 36 (La.App. 1 Cir. 3/11/94), 634 So.2d 466, 488, writ denied, 94-0906 (La. 6/17/94), 638 So.2d 1094. Jury charges will be considered adequate on appeal if they fairly and reasonably identify the issues and provide correct principles of law.

Johnson v. Terrebonne Parish Sheriff's Office,

95-1180, p. 7 (La.App. 1 Cir. 2/23/96), 669 So.2d 577, 582, writ denied, 96-0727 (La. 4/26/96), 672 So.2d 907. A jury verdict shall not be set aside because of an incorrect jury...