Sommer v. State, Dotd
Decision Date | 29 March 2000 |
Docket Number | No. 97-CA-1929.,97-CA-1929. |
Citation | 758 So.2d 923 |
Parties | Cheryl Ann Brown SOMMER v. STATE of Louisiana, DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Mississippi River Bridge Authority, Randall Paisant, Thomas E. Short, Neil Wagoner, J.L. Wax, Webb Taylor, Alan Lavasseur, Avant & Falcon, A Law Corporation, Mark E. Falcon, A.B. Insurance. |
Court | Court of Appeal of Louisiana — District of US |
Robert G. Harvey, New Orleans, LA and Raymond C. Burkhart, Jr., New Orleans, LA and Catherine Leary, Westwego, LA, Counsel for Plaintiff/Appellee.
Richard P. Ieyoub, Attorney General, Gary A. Cotogno, Special Assistant Attorney General, Pickering & Cotogno, A. P.L.L.C., New Orleans, LA, Counsel for Defendants/Appellants.
(Court composed of Judge WILLIAM H. BYRNES, III, Judge CHARLES R. JONES, Judge MIRIAM G. WALTZER, Judge MOON LANDRIEU and Judge JAMES F. McKAY, III).
The defendants appeal a judgment of January 30, 1997 that awarded Cheryl Ann Brown Sommer damages for the defendants' malicious defamation, interference with her employment and intentional infliction of mental suffering from the destruction of Ms. Sommer's career. The trial court also awarded Ms. Sommer damages for lost income, punitive damages, attorney's fees and interest. We affirm as amended.
On May 9, 1990, Cheryl Ann Brown Sommer sued the State of Louisiana, Department of Transportation and Development (DOTD), Mississippi River Bridge Authority, now the Crescent City Connection division of the DOTD (MRBA); Thomas E. Short, executive director of MRBA; Neil Wagoner, Secretary of DOTD; J.L. Wax, undersecretary of DOTD; Webb Taylor, acting executive director of MRBA; Alan Levasseur, executive director of MRBA; Mark E. Falcon and the Avant and Falcon law corporation, agents and attorneys for the State, DOTD and MRBA; Randall Paisant, Assistant Executive Director of MRBA; and two unnamed insurers allegedly having provided insurance coverage respectively to DOTD, MRBA, its agents and employees, and the attorney and law firm.
Ms. Sommer claimed that during 1988 and through January 3, 1989 she was a permanent civil service employee of MRBA with the rank of sergeant. She claims that she became ill in late 1988 and elected to use her previously accrued sick leave, compensatory leave and annual leave with the permission of her superiors, exhausting her sick leave on or about December 22, 1988. On January 3, 1989, she was hired as a Customs Inspector by the Department of the Treasury, U.S. Customs Service (Customs) and signed a "light duty" form.
Ms. Sommer alleges that after she was hired by Customs, she continued to exhaust her MRBA employee benefits with the knowledge and permission of her MRBA superiors, in accordance with MRBA customary practice. During this time, she claims she was available to discuss MRBA related matters and duties with those superiors.
On or about May 10, 1989, upon Paisant's initiation, the State, DOTD, MRBA, Short, Paisant, Wagoner, Wax, Taylor, Levasseur, Avant and attorney Falcon, under the color of law, conspired to have Ms. Sommer's employment terminated by Customs in violation of unspecified constitutional rights and Louisiana law.
Short, with the approval of the other defendants, terminated Ms. Sommer from MRBA effective February 16, 1989.
At the same time, Falcon, with the approval of the other defendants and using DOTD stationery, without having afforded Ms. Sommer due process, wrote to Customs alleging Ms. Sommer was under investigation by DOTD and that the agency intended to recoup the funds paid to her during the time she was employed by Customs. Wax received a copy of the letter. Approximately a week later, Falcon wrote to Customs on firm stationery alleging Ms. Sommer was violating the law by "milking the system" and using all of her accrued leave until she reached 300 hours. According to this letter, the State intended to recoup funds improvidently paid to Ms. Sommer and to have her dismiss her pending Civil Service Commission appeal. Falcon sent a similar message to another Customs official five days later. Two weeks later, Falcon wrote to David Hufft, Ms. Sommer's attorney in the civil service appeal, characterizing Ms. Sommer's conduct as fraudulent, stating that she should be held to a higher degree of integrity, that she was playing a game and implying that she might lose her job with Customs.
Ms. Sommer alleged that she did not learn of the defendants' actions or the related investigation until early September 1989. She claims that as a direct result of these actions, she was terminated by Customs on December 8, 1989.
Ms. Sommer claimed deprivation of property and equal protection rights, loss of income, damage to her personal and professional reputation and irreparable damage to her standing in the community, with her creditors and with the law enforcement community. She claims the State, DOTD and MRBA are responsible for her 42 U.S.C. § 1983 damages under the doctrine of respondeat superior and independently for their gross negligence amounting to conscious indifference. She sought actual damages, exemplary damages, attorney's fees and judicial interest from demand. She also sought damages for defamation based on Falcon's communications and for intentional infliction of mental suffering.
The State, DOTD, MRBA, Short, Wagoner, Wax, Taylor, Levasseur and Paisant answered the petition and asserted defenses of prescription and no cause of action, specifically disavowing the actions and statements of Falcon and his law firm. The matter was referred to mediation in 1995 under the Pilot Mediation Program of Civil District Court for the Parish of Orleans (Rule 18), which order was ultimately set aside and the matter was set for trial.
In her pre-trial submission, Ms. Sommer alleged that she is also entitled to recovery under La.R.S. 23:1006, employment discrimination, based on her gender.
Falcon and his law firm eventually settled Ms. Sommer's claim and were dismissed prior to trial.
The remaining individual defendants, employees of DOTD or MRBA, moved their exception of no cause of action under 42 U.S.C. § 1983 prior to trial, which the trial court denied. Following trial, the actions against defendants Wagoner and Taylor were dismissed. Discovery revealed that the state defendants were uninsured.
After a bench trial on the merits, the trial court rendered its January 30, 1997 judgment awarding Ms. Sommer the following:
General damages: $1,000,000.00 Lost income: +837,263.00 _____________ Subtotal: $1,837,263.00 PLUS Punitive damages (15% of total award): $ 275,589.45 Attorney's fees (15% of total award) +275,589.45 _____________ Subtotal: $ 552,278.90 FINAL AWARD: $1,837,263.00 + 552,278.90 _____________ TOTAL: $2,389,541.90 _____________ PLUS INTEREST
The judgment found that the following defendants were liable in solido: the State through DOTD and MRBA, J.L. Wax, Randall Paisant, Thomas Short, and Alan Levasseur.
The trial court issued detailed written reasons for judgment. He found that in 1988 Ms. Sommer was a sergeant with MRBA. In September, she developed a bronchial infection and went on sick leave. While on sick leave, on November 20, 1988, she received an offer of employment from Customs, to which she had applied several years before. Because MRBA policy did not confine employees to their homes while on sick leave, Ms. Sommer accepted the Customs offer and attended school in Glenco, Georgia. She did not resign from MRBA because no one else had ever had to resign under those circumstances and she was not sure that Customs would offer her a permanent position at the conclusion of her one year probationary period.
The trial court found that the evidence was uncontradicted that MRBA policy did not require a person on sick leave to remain confined to her domicile. This policy was confirmed by Shaw's testimony and by Falcon's testimony on cross-examination. Further, at the discretion of the appointing authority, an employee could use accrued annual leave, in lieu of sick leave, once the employee's sick leave has been exhausted. The trial court also found that official MRBA policy allowed an employee to take up to three hundred hours of accrued annual leave prior to terminating employment. Where an employee had accrued more than three hundred hours of annual leave, MRBA instituted a practice known as "running your time out" which allowed the employee to take the excess annual leave in lieu of sick leave prior to resignation. Frank Shaw, chief of MRBA police, testified that this policy was in place until Levasseur became MRBA director in mid-December, 1989. MRBA assistant police chief Michael Helmstetter's contrary testimony was rejected by the trial court, which found it incredible in light of Helmstetter's comment in his letter of January 10,1990 that it was common practice for an officer to exhaust all sick leave accrued before resigning.
The trial judge also found that DOTD and MRBA knew Ms. Sommer had accepted the job as probationary Customs Inspector. Ms. Sommer testified that she had many conversations with her MRBA supervisors about the Customs pre-appointment process. She applied to take hours off work to take her oral board examination. She normally dealt with deputy superintendent Michael Helmstetter, and recalled having discussed with him the necessity of her...
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