Richard v. Bd. of Super. of La. State Univ.

Decision Date28 March 2007
Docket NumberNo. 2006 CA 0927.,2006 CA 0927.
CourtCourt of Appeal of Louisiana — District of US
PartiesMildred R. RICHARD v. The BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND A & M COLLEGE, et al.

Charles C. Foti, Jr., Patricia H. Wilton, Baton Rouge, Counsel for Defendant/Appellee/Second Appellant Board of Supervisors of Louisiana State University & A & M College and Melissa Rogé.

Charles C. Foti, Jr., Alden A. Clement, Jr., Clifton O. Bingham, Jr., Baton Rouge, Counsel for Defendant/Appellee Board of Supervisors of Southern University.

Before: PETTIGREW, DOWNING, and HUGHES, JJ.

HUGHES, J.

Plaintiff, Mildred L. Richard, appeals herein the decision of the jury and judgment of the trial court in this matter, which: (1) found a violation of Ms. Richard's civil rights by defendant Melissa Rogé, an employee of Louisiana State University (LSU), (2) awarded nominal damages of $1.00 for that violation, and (3) found the Board of Supervisors of Southern University (Southern) not liable to Ms. Richards for retaliation pursuant to Title VII of the Civil Rights Act of 1964. Ms. Richard alleges the trial court erred in: (1) awarding only nominal damages in relation to the violation of Ms. Richard's civil rights by Ms. Rogé on behalf of LSU, (2) giving the jury the improper verdict form regarding punitive damages in relation to the violation of Ms. Richard's civil rights by Ms. Rogé on behalf of LSU, and (3) limiting Ms. Richard's retaliation claim against Southern to acts amounting to an "ultimate employment action" pursuant to Title VII of the Civil Rights Act of 1964. LSU, defendant herein, has also appealed, alleging the trial court erred in assessing nominal damages against both the university and its employee, Ms. Rogé. For the reasons that follow, we amend, reverse in part, reverse, and render judgment.

I. FACTS AND PROCEDURAL POSTURE

This litigation arises out of events that occurred during the late 1990s concerning Mildred R. Richard's employment at Southern and her enrollment at the peace officer basic training academy operated by LSU. Ms. Richard began working as a peace officer at Southern in November 1992. In accordance with La. R.S. 40:2405(A)(1), peace officers hired after 1986 "must successfully complete a certified training program" or else "be prohibited from exercising the authority of a peace officer."1 In early 1995, Southern sent Ms. Richard to the basic training academy operated by LSU; her session began on March 20. On March 22, while engaged in training for the defensive tactics portion of the program, an accident occurred and Ms. Richard injured her foot. Fearing dismissal, Ms. Richard attempted to continue the program despite being in pain. She saw a doctor on April 13, who instructed her to refrain from running and jumping until further notice. She saw the same doctor on April 18; he advised that she could return to full activities on April 24. The injury seems to have hindered Ms. Richard's likelihood of success at the academy; at any rate, she failed the program's defensive tactics test twice in May and was dismissed from the academy before graduation.

Ms. Richard next saw an attorney, who sent a letter to the Peace Officer Standards and Training (POST) Council, which oversees state law enforcement personnel qualifications and certification issues. The letter expressed Ms. Richard's suspicion that her dismissal was wrongfully due to "the subjective and disparate requirements utilized by the Academy's Coordinator, Ms. Melissa Wright."2 The council met, heard from both Ms. Richard and Ms. Wright, and unanimously voted to dismiss Ms. Richard's complaints as frivolous.

Ms. Richard's foot problems continued into 1996. In May 1996, she filed a complaint against the academy with the Equal Employment Opportunity Commission (EEOC) and the Louisiana Commission on Human Rights (LCHR) alleging discrimination at the program due to her being black and favoritism towards the white academy students. In September 1996, the LCHR dismissed Ms. Richard's charges as beyond its jurisdiction, which is limited to employment and public accommodations pursuant to La. R.S. 51:2231.

In August 1997, Ms. Richard encountered some difficulty in her employment environment at Southern that led her to file an internal Southern grievance against her supervisor, Captain Robert Johnson. In Ms. Richard's estimation, Capt. Johnson had sought to date her daughter and when her daughter refused, Capt. Johnson acted against Ms. Richard by continuing to assign her to disadvantageous and long weekend work shifts that Ms. Richard felt should have been given to peace officers at Southern with less seniority.

Ms. Richard's grievance against Capt. Johnson was not successful and the record shows no further official interaction between Ms. Richard and Capt. Johnson until December 16, 1997 when he sent her a memo advising that she was to meet with him the next day regarding her upcoming assignment to attend the LSU academy again in January 1998. Several days later, on December 19, 1997, Capt. Johnson received a letter from Melissa Rogé at the LSU academy that read in pertinent part as follows: "Mildred Richard was dismissed from the 123rd Basic Training Academy in May of 1995, for failure of Defensive Tactics. She will not be admitted back into the Academy due to the litigation filed against this Academy." Ms. Richard was not copied on this letter. Capt. Johnson and Ms. Rogé apparently spoke by telephone as well on December 19, 1997 concerning Ms. Richard.

On January 5, 1998, Capt. Johnson wrote to Ms. Richard and advised her of the December 19 letter from Ms. Rogé. After relaying the contents of Ms. Rogé's letter, Capt. Johnson concluded his letter with the following: "Due to the fact that you are an officer at Southern University, you are required by Law to attend the Law Enforcement Basic Academy." On that same day, a meeting was held at Southern that included Ms. Richard, Capt. Johnson, and Interim Vice Chancellor for Administration Tony Moudgil; discussion seems to have centered on Ms. Richard being terminated if she did not successfully complete the January 1998 academy program.

Ms. Richard again sought the advice of counsel and on January 6, 1998 her attorney sent a letter to Capt. Johnson with a copy to Ms. Rogé. The letter alleged that the recent actions by Capt. Johnson and Ms. Rogé amounted to employment discrimination in response to Ms. Richard's 1995 EEOC-LCHR charges, a violation of 42 U.S.C. § 2000e-3(a):

It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for . . . training or retraining, including on-the-job training programs, to discriminate against any individual . . . to discriminate against any member thereof or applicant for membership, because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

On January 27, 1998, Ms. Richard filed a new EEOC-LCHR complaint against Southern. Although this complaint was eventually dismissed as untimely filed, the dispute seems to have thawed a bit in February 1998 to the extent that Southern agreed to help Ms. Richard find another academy in Louisiana where she could get a fresh start and attempt the program again. Unfortunately, it appears that Capt. Johnson, when contacting these other programs, informed them that Ms. Richard had instituted "litigation" against the LSU Academy, which seems to have resulted in all of them declining to admit Ms. Richard.

On April 28, 1998 Southern instituted termination proceedings against Ms. Richard for failure to achieve the required certification. Ms. Richard's attorney responded on May 1, 1998 by letter to Ms. Rogé, alleging that the letter of December 19, 1997 and Ms. Rogé's conduct toward Ms. Richard were "flagrantly unlawful." The letter threatened litigation but expressed a hope that a compromise might be reached so that Ms. Richard would not be terminated from Southern. Ms. Richard's attorney sent a letter to Southern's personnel officer on May 8, 1998 that also threatened litigation. The letter expressed: (1) that Capt. Johnson's notifying the other academy programs that Ms. Richard was "in litigation" amounted to false representation since an EEOC-LCHR complaint is not actually a lawsuit, and (2) that Southern's own handling of the situation amounted to wrongful termination of a permanent civil service employee for filing a discrimination complaint "as she is perfectly entitled to do under the law."

These letters seem to have had some impact on both the LSU academy and Southern. The academy extended an invitation to Ms. Richard to attend the academy's summer 1998 session, which was to begin in June. Likewise, Southern decided not to terminate Ms. Richard, although it made clear that her continued employment was conditioned on completion of the POST certification program.

Ms. Richard was unable to attend the summer 1998 session due to illness; her medical disability during that time is documented in the record. She filed her suit on June 11, 1998 against Ms. Rogé and LSU, alleging racial discrimination in defendants' conduct (denying her re-admission to the academy in the December 19, 1997 letter) that amounted to retaliation for her filing the EEOC-LCHR complaint in May 1996. She sought compensatory and punitive damages for her injuries, which included damage to her personal and professional reputation and to her personal and professional life, including mental anguish and distress. She also sought attorney fees and injunctive relief against further discrimination. Shortly thereafter, LSU and Ms. Rogé filed an exception raising the objection of no...

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