Sampson v. Wendy's Management, Inc.

• Decision Date: 17 January 1992
• Docket Number: No. 91-CC-1281,91-CC-1281
• Citation: 593 So.2d 336
• Parties: Jacqueline SAMPSON v. WENDY'S MANAGEMENT, INC. 593 So.2d 336
• Court: Louisiana Supreme Court

Page 336

593 So.2d 336

Jacqueline SAMPSON v. WENDY'S MANAGEMENT, INC.

No. 91-CC-1281.

593 So.2d 336

Supreme Court of Louisiana.

Jan. 17, 1992.

Albert William Block, Jr., West Monroe, for applicant.

Robert McCullere Baldwin, Hudson, Potts & Bernstein, Monroe, for respondent.

HALL, Justice.

The issue before us concerns whether district courts have been divested of jurisdiction of the cause of action for retaliatory discharge created by LSA-R.S. 23:1361 by reason of the 1990 amendment to LSA-Const. Art. V, Sec. 16. LSA-R.S. 23:1361 imposes civil penalties on an employer for discharging or refusing employment to an employee or applicant because of the prior assertion of a claim for worker's compensation benefits. The constitutional amendment divested district courts of jurisdiction of worker's compensation matters where administrative agency determinations are provided for such matters by law, and purported to retrospectively ratify LSA-R.S. 23:1310.3(A)(4) which vested hearing officers of the Office of Worker's Compensation Administration with "original, exclusive jurisdiction over all claims filed pursuant to the Worker's Compensation Act."

Because we find the cause of action for retaliatory discharge created by LSA-R.S. 23:1361 constitutes a delictual employment law matter rather than a worker's compensation matter, we conclude that district courts have not been divested of jurisdiction over such an action and, consequently, that LSA-R.S. 23:1310.3 is not applicable.

FACTS AND PROCEDURAL BACKGROUND

Plaintiff, Jacqueline Sampson, received worker's compensation benefits for an injury she sustained on August 16, 1989, in the course of her employment with defendant, Wendy's Management, Inc. On December 18, 1989, Sampson was given a separation notice from Wendy's and was subsequently terminated.

Sampson filed suit in district court on July 24, 1990, under LSA-R.S. 23:1361 for penalties resulting from her alleged retaliatory discharge. Contending OWCA had original, exclusive jurisdiction over worker's compensation matters under LSA-R.S. 23:1310.3, Wendy's filed exceptions of prematurity and lack of subject matter jurisdiction.

Wendy's exceptions were overruled by the district court on its finding that it had not been divested of jurisdiction over this claim because the action for retaliatory discharge under LSA-R.S. 23:1361 constituted a claim for "civil penalties" rather than a suit for worker's compensation benefits.

The court of appeal granted Wendy's application for supervisory review and reversed the trial court's ruling. Sampson v. Wendy's Management, Inc., 580 So.2d 430 (La.App. 2d Cir.1991). That court determined a claim for retaliatory discharge constitutes a worker's compensation matter under LSA-Const. Art. V, Sec. 16. It also concluded that since the claim is created by the Worker's Compensation Act such a claim is included in the LSA-R.S. 23:1310.3 jurisdictional grant to OWCA. This court's per curiam decision in Fontenot v. R. LeJeune Machine Shop & Iron Works, Inc., 534 So.2d 429 (La.1988), which held a claim for retaliatory discharge did not fall within LSA-C.C.P. Art. 1732's prohibition of a jury trial in worker's compensation proceedings, was determined not to be dispositive of the case at hand since that decision was rendered prior to the enactment of LSA-R.S. 23:1310.3. The constitutional amendment was found to have expressly retrospectively ratified LSA-R.S. 23:1310.3 and, consequently, the district court was determined to lack subject matter jurisdiction since suit was filed after LSA-R.S. 23:1310.3's effective date of January 1, 1990.

The court of appeal dismissed plaintiff's suit without prejudice. We granted plaintiff's writ application. 584 So.2d 662 (La.1991).

ANALYSIS

Effective November 7, 1990, LSA-Const. Art. V, Sec. 16 was amended to provide for original jurisdiction of all civil and criminal matters in district courts except as otherwise authorized by the constitution or "except as heretofore or hereafter provided by law for administrative agency determinations in worker's compensation matters." That amendment purported to retrospectively ratify LSA-R.S. 23:1310.3, effective January 1, 1990, which vested original, exclusive jurisdiction over "all claims filed pursuant to the Worker's Compensation Act" with the OWCA hearing officers, but was declared unconstitutional by this court in Moore v. Roemer, 567 So.2d 75 (La.1990), rehearing denied October 4, 1990.

Our initial inquiry pertains to the nature of a claim for retaliatory discharge under LSA-R.S. 23:1361 as district courts are only divested of jurisdiction of worker's compensation matters and then only where administrative agency determinations have been provided for such matters by law.

LSA-R.S. 23:1361 provides:

A. No person, firm or corporation shall refuse to employ any applicant for employment because of such applicant having asserted a claim for worker's compensation benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Section shall require a person to employ an applicant who does not meet the qualifications of the position sought.

B. No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions 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.

C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year's earnings, together with a reasonable attorney's fee.

LSA-R.S. 23:1361 prohibits discrimination by employers in their hiring and firing policies against those who have exercised their right to worker's compensation benefits. As such, LSA-R.S. 23:1361 was recognized by this court in Moore v. McDermott, Inc., 494 So.2d 1159 (La.1986), to constitute a statutory exception to employment at will as codified in LSA-C.C. Art. 2747. See also Cahill v. Frank's Door and Bldg. Supply, 590 So.2d 53 (La.1991). Employment at will has also been limited in other instances to protect the rights of those participating in protected activities or those asserting protected rights or those who fall in a protected class. See LSA-R.S. 23:891 et seq.

The purpose of LSA-R.S. 23:1361 has been defined as the prevention of unjust dismissals where employees are terminated for asserting their rights to worker's compensation benefits so as to allow employees to exercise their right to such benefits without retaliatory action by their employer. Ducote v. J.A. Jones Const. Co., 471 So.2d 704 (La.1985). Accordingly, the behavior prohibited by the statute is the violation by an employer of his statutorily imposed duty not to discriminate against worker's compensation claimants. When an employer violates this statutorily imposed duty, his actions are tortious.

The discharge of an employee in retaliation for filing a worker's compensation claim was also found to be tortious in Lynn v. Berg Mechanical, Inc., 582 So.2d 902 (La.App. 2d Cir.1991), Arvie v. Century Tel. Enterprises, Inc., 452 So.2d 392 (La.App. 3d Cir.1984) and Spencer v. Howard, Weil, Et Al., 543 So.2d 547 (La.App. 4th Cir.), writ denied, 546 So.2d 1217 (1989).

Numerous other states have recognized an exception to employment at will where employees are discharged in retaliation for the exercise of their rights to worker's compensation benefits. In such instances, the employees have been determined to have a cause of action, whether statutorily or judicially created, against their employer in tort for wrongful discharge. See, e.g., Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353 (1978); Frampton v. Central Indiana Gas Company, 260 Ind. 249, 297 N.E.2d 425 (1973); Springer v. Weeks and Leo Co., Inc., 429 N.W.2d 558 (Iowa 1988); Firestone Textile Co. Div. v. Meadows, 666 S.W.2d 730 (Ky.1983); Sventko v. Kroger Co., 69 Mich.App. 644, 245 N.W.2d 151 (1976); Dake v. Tuell, 687 S.W.2d 191 (Mo. banc 1985); Hansen v. Harrah's, 100 Nev. 60, 675 P.2d 394 (1984); Krein v. Marian Manor Nursing Home, 415 N.W.2d 793 (N.D.1987); Pierce v. Franklin Elec. Co., 737 P.2d 921 (Okl.1987); Brown v. Transcon Lines, 284 Or. 597, 588 P.2d 1087 (1978); Clanton v. Cain-Sloan Co., 677 S.W.2d 441 (Tenn.1984); Griess v. Consolidated Freightways Corp., 776 P.2d 752 (Wyo.1989). See also 2A Larson, The Law of Workmen's Compensation, Sec. 68.36(A) (Supp.1991).

Although enacted as an amendment to the Louisiana Worker's Compensation Act and although the existence of the action is contingent upon an employee or prospective employee being terminated or refused employment because of the assertion of a claim for worker's compensation benefits, we conclude the cause of action created by LSA-R.S. 23:1361 constitutes a delictual employment law matter, as a statutory exception to employment at will, rather than a worker's compensation matter.

The location in the Revised Statutes of a statute which creates a cause of action is not necessarily determinative of the nature of that action. The fact that the statute recognizing the cause of action for retaliatory discharge appears in the Chapter on Worker's Compensation does not alone make the action a worker's compensation matter. The fact that the Worker's Compensation Act does not provide a prescriptive period for the action nor a procedure for the administration of the action...