Covington v. McNeese State University

• Decision Date: 05 November 2008
• Docket Number: No. 08-505.,08-505.
• Citation: 996 So.2d 667
• Parties: Collette Josey COVINGTON, et al. v. McNEESE STATE UNIVERSITY, et al.
• Court: Court of Appeal of Louisiana — District of US

996 So.2d 667

Collette Josey COVINGTON, et al. v. McNEESE STATE UNIVERSITY, et al.

No. 08-505.

Court of Appeal of Louisiana, Third Circuit.

November 5, 2008.

Rehearing Denied December 10, 2008.

James D. "Buddy" Coldwell, Attorney General, Adam L. Ortego, Jr., Assistant Attorney General, Lake Charles, LA, for Defendants/Appellants, McNeese State

University, State of La., Board of Supervisors for University of La. System.

Seth B. Hopkins, Attorney at Law, Houston, TX, for Plaintiffs/Appellees, Collette Josey Covington, Jade Covington.

Court composed of JOHN D. SAUNDERS, JAMES T. GENOVESE, and CHRIS J. ROY, SR.^*, Judges.

SAUNDERS, Judge.

This is case wherein a student filed suit under Title II of the Americans with Disabilities Act of 1990 (hereinafter "ADA") and comparable Louisiana laws against the university she was attending. The student alleged in her petition that she was injured while exiting a non-ADA compliant restroom located in the university's student union.

The student filed a motion for summary judgment on various issues, including whether she was discriminated against by the university. The trial court found that the university was not entitled to sovereign immunity under U.S. Const. amend. XI, that the plaintiff was disabled, and that the university discriminated against her.

The university appealed alleging four assignments of error. We affirm the trial court's ruling regarding the four assignments raised.

FACTS AND PROCEDURAL HISTORY:

On January 31, 2001, plaintiff, Collette Covington (hereinafter "Covington"), was a wheelchair-bound student at McNeese State University (hereinafter "McNeese") with a history of a seizure disorder. On that date, she attended class on campus in Farrar Hall. Covington then proceeded to the Holbrook Student Union (hereinafter "the Old Ranch"). There she was to meet at the designated location for her transportation provided by the Louisiana Vocational Rehabilitation Service.

While waiting, Covington needed to use the restroom and proceeded to go into the Old Ranch. The doorway to the restroom that Covington attempted to use, at its smallest point, measured 29 5/8 inches in width, while the standards for ADA compliance is 32 inches. Covington alleged that while she was able to enter into the restroom, she suffered the humiliation of urinating on herself while unsuccessfully trying to transport from her wheelchair through the narrow, non-complaint restroom stall door. Covington alleged that she then was injured while trying to gain sufficient leverage to open the door to exit the restroom.

After lengthy discovery, it was admitted by McNeese that not a single women's restroom in the Old Ranch is ADA compliant. Further, McNeese admitted that it did not have a transition plan in writing as required by the ADA.

Covington filed a motion for summary judgment on a multitude of issues. The trial court found that Covington was entitled to a judgment as a matter of law on the following issues: (1) that McNeese was not immune from suit under U.S. Const. amend. XI; (2) that she was disabled as defined by the ADA; and (3) that McNeese discriminated against her. McNeese appealed, alleging four assignments of error.

ASSIGNMENTS OF ERROR:

1. The Trial Court erred in applying an incorrect standard to find that there was no genuine issue of material fact as to whether McNeese discriminated against Covington.

2 The Trial Court erred in finding that there was no genuine issue of material fact as to whether McNeese is immune from Covington's ADA claim under Amendment XI to the United States Constitution.

3. The Trial Court erred in finding that there was no genuine issue of material fact as to whether Covington qualified as disabled under the ADA.

4. The Trial Court erred in finding that there was no genuine issue of material fact as to whether McNeese discriminated against Covington.

ASSIGNMENT OF ERROR # 1:

McNeese claims that the trial court erred in applying an incorrect standard to find that there was no genuine issue of material fact as to whether it discriminated against Covington. We find that this is a moot assignment of error.

The applicable standard of review for an appellate court when reviewing a motion for summary judgment is that of de novo. A de novo review gives no weight to the judgment of the trial court. If the applicable standard of review were that of manifest error, or the like, then any review by this court resulting in a finding that the trial court used the incorrect standard would require us to give no credence to the trial court's findings. This is something a de novo review already entails. As such, we will not address whether the trial court applied the correct standard. Rather, we will fully address what standard of review is applicable to the particular issues presented to us in McNeese's appeal.

This court, in McClaff, Inc., et al. v. Arch Insurance Co., et al., 07-1182, pp. 7-8 (La.App. 3 Cir. 2/27/08), 978 So.2d 482, 487-88 (citations omitted), aptly addressed the standard of reviewing a motion for summary judgment on appeal when it stated the following:

Appellate courts review summary judgments de novo, applying the same criteria that govern a trial court's determination of a motion for summary judgment. Louisiana's Code of Civil Procedure [Article 966(B)] states that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." We are required to construe factual inferences that are reasonably drawn from the evidence presented in favor of the party opposing the motion; all doubt is to be resolved in the non-moving party's favor.

We also are to remain cognizant of the mover's and non-mover's burdens of proof. Although the burden of proof on a motion for summary judgment remains with the moving party, the mover's burden changes depending upon whether he or she will bear the burden of proof at trial on the matter that is the subject of the motion for summary judgment:

[I]f he or she will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

Thus, in the case before us, Covington, as the movant, bears the burden of proof on the motion for summary judgment. What Covington's burden of proof is depends upon whether she has the burden of proof at trial on the particular matter that is the subject of the motion for summary judgment. Here, the matters before this court on appeal are: (1) whether, under the ADA, Covington is and was disabled on January 31, 2001, at the time when she was allegedly injured in an Old Ranch restroom located on McNeese's campus; (2) whether McNeese discriminated against Covington; and (3) whether McNeese is entitled to immunity from this suit under Amendment XI to the United States Constitution.

In the first two issues, Covington bears the burden of proof at trial. Thus, her burden of proof on these two matters in a motion for summary judgment is to show that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that [she] is entitled to judgment as a matter of law." La.Code Civ.P. art. 966(B).

However, McNeese bears the burden of proof at trial on the third issue, i.e. immunity, as it is an affirmative defense. Thus, Covington, as movant for the motion for summary judgment, but not being the party that must carry the burden of proof on that particular matter at trial, does not have a burden "to negate all essential elements of [McNeese's Amendment XI immunity] defense." La.Code Civ.P. art. 966(C)(2). Instead, Covington merely has "to point out to the court that there is an absence of factual support for one or more elements essential to [McNeese's] defense." Id. Assuming Covington does so, if McNeese "fails to produce factual support sufficient to establish that [it] will be able to satisfy [its] evidentiary burden of proof at trial, there is no genuine issue of material fact" and Covington would be entitled to summary judgment on that matter. Id.

ASSIGNMENT OF ERROR # 2:

In this assignment, McNeese contends that the trial court erred in finding that there was no genuine issue of material fact as to whether it is immune from Covington's ADA claim under the Amendment XI to the United States Constitution. We find that McNeese's contention lacks merit.

McNeese bears the burden of proof at trial on this issue as it is an affirmative defense. Thus, Covington, as movant for the motion for summary judgment, but not being the party that must carry the burden of proof on that particular matter at trial, has "to point out to the court that there is an absence of factual support for one or more elements essential to [McNeese's] defense." La.Code Civ.P. art. 966(C)(2).

We find that Covington does so by pointing out that, under Bennett-Nelson v. Louisiana Board of Regents, 431 F.3d 448 (5th Cir.2005), cert. denied, 547 U.S. 1098, 126 S.Ct. 1888, 164 L.Ed.2d 568 (2006), and Pace v. Bogalusa City School Board, 403 F.3d 272 (5th Cir.), cert. denied, 546 U.S. 933, 126 S.Ct. 416, 163 L.Ed.2d 317 (2005) McNeese has waived its Amendment XI sovereign immunity defense.

Thus, under ...