Nicholson v. Transit Management of Southeast Louisiana

• Decision Date: 14 February 2001
• Docket Number: No. 2000-CA-0706.,2000-CA-0706.
• Parties: Sandra NICHOLSON v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, d/b/a R.T.A.
• Court: Court of Appeal of Louisiana — District of US

781 So.2d 661

Sandra NICHOLSON v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, d/b/a R.T.A.

No. 2000-CA-0706.

Court of Appeal of Louisiana, Fourth Circuit.

February 14, 2001.

Writ Denied May 11, 2001.

Joseph G. Albe, Metairie, LA, Counsel for Plaintiff/Appellee.

C. Theodore Alpaugh, III, Ira J. Rosenzweig, Smith Martin, New Orleans, LA, Counsel for Defendant/Appellant.

Court composed of Judges PLOTKIN, WALTZER, and TOBIAS.

PLOTKIN, Judge.

This is a tort claim by an employee against her employer for retaliatory discharge for asserting a workers' compensation claim. Defendant, Transit Management of Southeast Louisiana, Inc. ("TMSEL"), appeals a trial court judgment in favor of plaintiff, Sandra Nicholson, based on a finding that TMSEL discharged Ms. Nicholson because she asserted a workers' compensation claim, in violation of LSA-R.S. 23:1361. We amend the judgment and affirm as amended.

Facts

Ms. Nicholson worked for TMSEL from 1988 until her discharge on May 27, 1994, first as a streetcar operator, then as a bus driver. During her period of employment, Ms. Nicholson claims that she suffered two work-related injuries. The first injury occurred on September 22, 1991, when Ms. Nicholson injured her shoulder while pulling the trolley pull. Ms. Nicholson testified that she reported her injury to her supervisor and that her supervisor completed an accident report and helped her apply for workers' compensation benefits. As a result of the shoulder injury, Ms. Nicholson was unable to work from September 22, 1991, until June 8, 1992. Ms. Nicholson received workers' compensation benefits during that period. When she returned to work, Ms. Nicholson was transferred from her position as a streetcar operator to a position as a bus driver, where she would not be required to pull trolley pulls, on recommendation of the TMSEL company doctor. Ms. Nicholson's new supervisor at the Arabella bus station, Frank Echols, attempted to discharge Ms. Nicholson after she returned to work following the shoulder injury; however, his decision was reversed as a result of a grievance filed by Ms. Nicholson pursuant to TMSEL's contract with the Amalgamated Transit Union ("ATU").

Ms. Nicholson's second injury occurred on July 8, 1993, when she injured her knee while executing a hard braking procedure. Ms. Nicholson testified that she followed the same procedures that she followed after the first accident. She reported both her injury and her desire to receive worker's compensation benefits to her supervisor, Mr. Echols, expecting that he would file an accident report and help her apply for workers' compensation benefits. Ms. Nicholson testified that instead of assisting her in applying for benefits, Mr. Echols told her that her injury was not compensable under workers' compensation because she did not fall. Apparently neither Mr. Echols nor Ms. Nicholson completed an accident report related to the incident. Nevertheless, Ms. Nicholson sought medical treatment, including surgery, for her knee injury, as a result of which she was unable to work from the date of the injury until May 23, 1994, when her doctor released her to return to work. Ms. Nicholson did not receive workers' compensation benefits during the time she was not working following the July 1993 injury.

Ms. Nicholson testified at trial that she took the "Return to Work" slip provided by her doctor to Diane Thornton, the run dispatch clerk on duty at TMSEL, sometime in the afternoon or evening of May 25, 1994. According to Ms. Nicholson, Ms. Thornton told her that she would give the slip to Mr. Echols and that Mr. Echols would call her. Mr. Echols testified that he received Ms. Nicholson's "Return to Work" slip, but that he did not call her because she had been told by Joseph Johnson, another run dispatch clerk, to come into the office to see Mr. Echols on May 26, 1994. However, Mr. Johnson testified that he never personally received the "Return to Work" slip from Ms. Nicholson; no one asked him at trial whether he told Ms. Nicholson to report to Mr. Echols on May 26, 1994.

According to Mr. Echols, when Ms. Nicholson failed to report to his office as instructed by Mr. Johnson on May 26, 1994, she was discharged effective May 27, 1994. The stated reason for her discharge was "insubordination." However, Mr. Echols failed to inform TMSEL's Human Resources Department of Ms. Nicholson's discharge until five days later. Mr. Echols testified that TMSEL allows employees to be "AWOL" (presumably "Absent Without Official Leave") for five days and that he was giving Ms. Nicholson that five-day AWOL period to report to work. He stated that he might have reconsidered his decision to discharge Ms. Nicholson had she come in during that five-day period and provided a reason for her failure to report on May 26, 1994 as instructed by Mr. Johnson. Ms. Nicholson was apparently never given official notice of the fact of her discharge, the date of her discharge, or the reason for her discharge. She testified that she learned of the discharge about three weeks after the fact when she was finally able to contact Mr. Echols by telephone.

On May 12, 1995, Ms. Nicholson filed suit against TMSEL for retaliatory discharge pursuant to LSA-R.S. 23:1361(B), relative to unlawful discharge for asserting a workers' compensation claim. At some point, Ms. Nicholson apparently also filed a formal claim seeking workers' compensation benefits for the period of time she was off work following her knee injury. Following a trial on the retaliatory discharge claim, judgment was entered in favor of Ms. Nicholson. TMSEL was ordered to pay Ms. Nicholson the statutory penalty of $18,500, Ms. Nicholson's salary for one year, plus attorney's fees of $8,000, costs, and judicial interest on all amounts from the date of judicial demand. The trial court stated oral reasons for judgment, as follows:

After hearing the testimony and reviewing the evidence in this case, the Court finds for the plaintiff, Sandra Nicholson, and against the defendant, Transit Management of Southeast Louisiana doing business as RTA.

The Court finds that the plaintiff, Sandra Nicholson, established with a preponderance of the evidence that she was discharged from her job as a bus operator with TMSEL. The plaintiff states that she spoke to Diane Thornton and was told that the supervisor, Mr. Echols, would call her to schedule an appointment with the company manager to take care of other matters — the company doctor — and to take care of other matters before her return to work. The defendants never satisfactorily established to this Court their claim of-their claim that they told Ms. Nicholson to return to work on May 26th. Diane Thornton does not remember meeting with Ms. Nicholson. Mr. Echols said that Johnson told her, Mr. Johnson told the plaintiff to constant [sic] him. Mr. Johnson says that he didn't have that have [sic] conversation with the plaintiff. So no one established for certainty that she was instructed to return to work on May 26th, and the Court finds it doubtful that she was told that.

The Court finds that the failure to report to work on May 26th was not her failure to follow instruction of a supervisor. And the Court also notes that the defendant also attempted to fire Ms. Nicholson in 1991 after her return on a worker's comp claim.

The Court also notes that her worker's comp claim was filed after her discharge, but the Court feels that the company was aware of her claim before the filing of the official worker's comp claim.

TMSEL appeals, asserting three assignments of error, as follows:

1. The trial court committed legal error by determining that the plaintiff filed a worker's compensation claim prior to her termination, the most basic requirement for a retaliatory discharge claim under R.S. 23:1361.

2. The trial court manifestly erred by determining that the plaintiff proved by a preponderance of evidence that her termination resulted from the filing of her workers' compensation claim.

3. The trial court committed legal error by awarding interest on the attorney's fees and costs portion of the judgment.

Ms. Nicholson has answered the appeal, asserting a claim for additional attorney's fees incurred for defending the instant appeal.

Claim requirement

LSA-R.S. 23:1361(B) provides as follows:

No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provision of this Chapter or under the law of any state or of the United States. 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.

Emphasis added.

By its first assignment of error, TMSEL claims that Ms. Nicholson failed to prove a basic element of her claim for retaliatory discharge-i.e., that she was discharged for filing a workers' compensation claim. TMSEL seeks to equate the reference in LSA R.S. 23:1361(B) to an employee who has "asserted" a workers' compensation claim to an employee who has formally filed a claim. In the instant case, Ms. Nicholson did not formally file a claim for workers' compensation benefits until after her discharge by TMSEL. Thus, TMSEL asserts, Ms. Nicholson failed to prove, and in fact cannot prove, her retaliatory discharge claim.

However, Ms. Nicholson testified at trial that she told Mr. Echols that she wanted to receive workers' compensation benefits at the time she reported the July 8, 1993, incident that resulted in injury to her knee. It is self-evident that Ms. Nicholson received medical benefits and compensation from the defendant for the accident of July 8, 1993. The defendant is self-insured, and retains experienced persons trained in reporting and adjusting personal injury and workers' compensation claims.

Although no Louisiana court has considered this issue, the United States Court for the Eastern District of Louisiana has found that "an employer who has...