McCain v. City of Lafayette

• Decision Date: 05 May 1999
• Docket Number: No. 98-1902.,98-1902.
• Citation: 741 So.2d 720
• Parties: Howard Mitchell McCAIN, Jr., Plaintiff-Appellant, v. The CITY OF LAFAYETTE, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

741 So.2d 720

Howard Mitchell McCAIN, Jr., Plaintiff-Appellant, v. The CITY OF LAFAYETTE, et al., Defendants-Appellees.

No. 98-1902.

Court of Appeal of Louisiana, Third Circuit.

May 5, 1999.

Writ Denied September 17, 1999.

Randall Scott Iles, for Howard Mitchell McCain, Jr.

Michael Dean Hebert, Lafayette, for City of Lafayette.

Before PETERS, AMY and GREMILLION, Judges.

AMY, Judge.

The plaintiff filed suit in district court asserting that the City of Lafayette and his superiors wrongfully discharged him from his employment with the city due to his age. Upon motion for summary judgment by the defendants, the lower court concluded that the age discrimination statute under which the suit was filed did not permit such an action against the individual defendants and, therefore, dismissed them from the suit. Furthermore, the lower court concluded that no subject matter jurisdiction existed for the civil suit as the discrimination action stemmed from the plaintiff's removal from office and, therefore, the matter had to first be raised before the civil service board. The plaintiff appeals both aspects of this two-fold judgment. For the reasons which follow, we affirm.

Factual and Procedural Background

The plaintiff in this matter, Howard Mitchell McCain, Jr., was employed by the City of Lafayette as the Capital Improvements Manager in 1993-1994. The record indicates that, following several evaluations indicating that areas of his job performance needed improvement, McCain's employment was terminated effective January 3, 1995. McCain, who was fifty-nine at the time, alleges that he was only several months from retirement when he was discharged.

Following the termination, McCain appealed the discharge to the Lafayette Municipal Government Employees Civil Service Board. Following hearings that lasted several days and included the calling of witnesses, the civil service board concluded that the discharge was made in good faith and that cause existed for the termination. There is no indication in the civil service board's findings of fact that an allegation of age discrimination was placed at issue by the plaintiff.

On August 25, 1995, the plaintiff filed a petition instituting the case sub judice alleging that the City of Lafayette discriminated against him due to his age. He sought recovery pursuant to La.R.S. 23:971, et seq. The City of Lafayette was named as a defendant as were Kenneth Bowen, Mayor of the City of Lafayette, Aros Mouton, Chief Administrative Officer, and John Raines, the Director of Public Works. Raines was the plaintiffs direct supervisor. The petition indicates that the plaintiff sought compensation for loss of sick leave/pay, vacation time, retirement income deferment, retirement program contributions, and business reputation. Additionally, McCain sought general damages.

In July 1998, the defendants filed a motion for summary judgment. In a supporting memorandum, the defendants first asserted that a suit pursuant to La.R.S. 23:971, et seq., could not be brought against the individual supervisors. Next, the defendants alleged that the district court did not have subject matter jurisdiction to hear any age discrimination suit against the City as McCain failed to initially raise the issue before the civil service board. Finally, the City argued that, even if the district court was found to have subject matter jurisdiction, the plaintiff would be unable to prove that he was discharged due to age discrimination. In support of this motion for summary judgment, the defendants filed depositions and affidavits from the individuals involved as well as related documents, including the evaluations and correspondence between the parties relating to the evaluations/termination process. In opposition, the plaintiff filed deposition excerpts and memoranda related to the parties' working relationship.

The lower court found in favor of the defendants. In a minute entry detailing the reasons for ruling, the lower court concluded that La. Const. art. X, § 12 granted original jurisdiction in the civil service board since the cause of action stemmed from the plaintiffs removal and that, since the plaintiff failed to pursue the issue before the civil service board, he was precluded from bringing it before the court.

The plaintiff appeals assigning the following as error:

1. The District Court erred in dismissing the individual defendants as this Court of Appeal has not adopted the holdings of the United States Fifth Circuit Court of Appeal in disallowing individual defendants in an Age Discrimination in Employment Act claim.

2. The District Court erred in granting the City of Lafayette's Motion for Summary Judgment finding that civil service remedies are exclusive remedies which displace rights under the Age Discrimination in Employment Act and under the Louisiana Age Discrimination in Employment Act.

Discussion

This matter is on appeal following summary judgment. La.Code Civ.P. art. 966(A)(1) provides that a party may move for summary judgment any time after the filing of the answer. Article 966(B) requires that summary judgment be rendered "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." Furthermore, La.Code Civ.P. art. 966(C)(2) provides as follows:

The burden of proof remains with the movant. However, if the movant 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.

An appellate court's review of a summary judgment is de novo and employs the same criteria considered by the lower court. Kumpe v. State, 97-386 (La.App. 3 Cir. 10/8/97); 701 So.2d 498, writ denied, 98-0050 (La.3/13/98); 712 So.2d 882. Mindful of this standard, we turn to the issues presented for review.

Individual Liability

Although no reasons are explained in the reasons for ruling, the judgment signed by the lower court dismissed the individual defendants, Bowen, Mouton, and Raines, from the suit. The defendants' memorandum supporting the motion for summary judgment contains the argument that analogous federal law precludes an age discrimination claim against individual defendants. In his first assignment of error, the plaintiff maintains that the court's reliance on federal law is misplaced. McCain contends that "our State version of the Louisiana Age Discrimination in Employment Act is not meant to mirror that of the Federal Rule." Furthermore, he contends that the jurisprudence of this circuit, namely, Taylor v. Oakbourne Country Club, 95-388 (La.App. 3 Cir. 10/4/95); 663 So.2d 379, indicates that an action under the Louisiana statute may be maintained against individual defendants.

McCain filed suit under La.R.S. 23:971, et seq. At the time of the actions at issue, these statutes created a cause of action for age discrimination by an employer.¹ The following definition is provided for "employer":

§ 971. Definitions

For the purposes of this Part, the following terms shall have the definitions as ascribed below unless the context indicates otherwise:

(1) "Employer" means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calender year. The term also means any agent of such person ....

At issue in this assignment is whether the phrase "agent for such person .. ." includes individual supervisors. The defendants maintain that the definition cannot include these individuals as federal courts have interpreted a similar federal provision as not including these supervisors.

Upon comparison, the federal statute referenced by the defendants prohibits an employer from discriminating against an individual due to age and provides a substantively similar definition of "employer." 29 USC § 630(b) contains the following definition:

The term "employer" means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.

(Emphasis added.) In Stults v. Conoco, 76 F.3d 651 (5th Cir.1996), a panel of the United Stated Court of Appeals, Fifth Circuit concluded that the definition does not permit a cause of action against individual supervisors who do not otherwise qualify as an employer. Rather, the Fifth Circuit cited a Fourth Circuit case wherein it was reasoned that imposition of liability would place a heavy burden on personnel decisions and the following interpretation was offered: "`Instead, we read § 630(b) as an unremarkable expression of respondeat superior—that discriminatory personnel actions taken by an employer's agent may create liability for the employer.'" Id. at 655, quoting Birkbeck v. Marvel Lighting Corp., 30 F.3d 507, 510-11 (4th Cir.), cert. denied, 513 U.S. 1058, 115 S.Ct....