Terrebonne v. Louisiana Ass'n of Educators

• Decision Date: 22 December 1983
• Docket Number: No. 83,83
• Citation: 444 So.2d 206
• Parties: 115 L.R.R.M. (BNA) 5191, 15 Ed. Law Rep. 1025 Nancy TERREBONNE v. LOUISIANA ASSOCIATION OF EDUCATORS. CA 0276.
• Court: Court of Appeal of Louisiana — District of US

Page 206

444 So.2d 206

115 L.R.R.M. (BNA) 5191, 15 Ed. Law Rep. 1025

Nancy TERREBONNE v. LOUISIANA ASSOCIATION OF EDUCATORS.

No. 83 CA 0276.

Court of Appeal of Louisiana First Circuit.

Dec. 22, 1983.

Writ Denied Feb. 27, 1984.

Floyd J. Falcon, Jr., Baton Rouge, for plaintiff-appellant Nancy terrebonne.

William D'armond, Baton Rouge, for defendant-appellee La. Ass'n of Educators.

Before COVINGTON, COLE and SAVOIE, JJ.

SAVOIE, Judge.

Plaintiff appeals from a judgment upholding her dismissal "without due process" as a UniServ Field Representative in defendant's employ. We affirm. There is no evidence that defendant obligated itself to afford plaintiff a due process hearing and, therefore, as an indefinite term employee, plaintiff's employment was terminable at the will of either party. L.S.A.-C.C. arts. 1814, 1815, 2746, 2747.

Defendant is a non-profit corporation whose membership is composed of teachers and educators. Its purpose is to foster, protect and promote the interests of teacher-educators in all aspects of their interests. Toward fulfillment thereof, it provides local chapters and member organizations with UniServ Representatives who act as liaisons between the locals and defendant, and serve the needs and requirements of the locals.

Plaintiff applied for the position of UniServ Representative for assignment to the East Baton Rouge Parish Association of Educators (EBRPAE) as advertised by defendant. In response thereto, plaintiff received a letter from defendant's executive secretary, H.C. Robinson, enclosing a copy of the job requirements and a copy of defendant's personnel policies. Thereafter, in December, 1979, plaintiff was hired for the position. There was no written contract of employment.

The term of plaintiff's employment was not to exceed three years but successive terms were permissible. Further, on September 27, 1980, defendant's Executive Council adopted a resolution concerning re-employing professional staff members (which includes all UniServ Representatives) until June 30, 1983.

In late 1980, or early 1981, defendant began receiving complaints from EBRPAE concerning plaintiff's conduct and competency. Pursuant thereto, Robinson informed plaintiff, by letter dated February 16, 1981, that he was recommending her dismissal at EBRPAE's request. Further, plaintiff was informed that defendant's Executive Council would consider this matter on March 14, 1981. Plaintiff wrote Robinson that she understood the complaints had been withdrawn. In addition, she complained that her due process rights had been violated as there was no specification of charges against her. In response thereto, Robinson specified 27 charges of alleged misconduct in his letter of February 26, 1981.

At the Executive Council meeting, EBRPAE agreed to drop the charges provided plaintiff was assigned other duties and another specifically named UniServ Representative appointed to EBRPAE. Defendant declined this solution. Thereafter, at EBRPAE's request, defendant ordered an investigation and evaluation of plaintiff. As a result thereof, Robinson advised plaintiff by letter dated July 24, 1981, that he would recommend plaintiff's dismissal at the August 15 meeting of the Executive Council, provided delivery of the notice was effected 20 days prior to the meeting date. Further, he advised that if such notice was not forthcoming, then the meeting date would be continued and plaintiff given further notice. Attached to the notice was a detailed specification of charges of misconduct and incompetency.

Plaintiff received actual notice of the scheduled hearing on July 27, 1981. Immediately, she contacted Robinson, who agreed to postpone the hearing date. At the August 15 meeting, the Executive Council agreed to a new hearing date of August 22. Plaintiff was notified accordingly on the 17th of August. Plaintiff protested that this was not sufficient time to prepare her defense and requested a further postponement. This request was denied.

At the hearing, the chairperson announced that each side would be allotted one and one-half hours for presentation of evidence and argument. Cross-examination of witnesses would be allowed by Council members and only for clarification purposes. Further, the matter would be heard in executive/closed session since a personnel matter was involved. Further, the chairperson rejected plaintiff's request that a transcript of the proceeding be made. Pursuant to this format, a hearing was held.

Robinson produced unsworn statements and witnesses against plaintiff despite objection by plaintiff's counsel. His presentation lasted approximately 45 minutes. Plaintiff also presented unsworn witnesses in her behalf. She was allowed slightly more than the alloted time to present her evidence. As a result of this hearing, plaintiff was terminated, and this suit instituted.

The trial court understood plaintiff's argument to be two-fold. First, that she was employed for a fixed term and, therefore, could not be discharged without due process, which, argues plaintiff, includes, among other things, the opportunity to confront her accusers. Secondly, that if plaintiff's employment was not for a fixed term, she was nevertheless entitled to a due process hearing, by virtue of the defendant's policy provisions, which became engrafted as part of her employment contract. With these issues before it, the trial court held that plaintiff was not a "fixed term" employee because there was no meeting of the minds as to the term involved. Therefore, plaintiff was an "at will" employee and subject to discharge at any time without cause. As to the remaining issue, the court concluded there was no binding agreement on defendant's part to afford plaintiff a due process hearing. It noted the lack of evidence of any bargaining for due process or any other consideration thereof. Further, the trial court found that its decision therein obviated consideration of whether the discharge procedure employed by defendant met due process requirements.

On appeal, plaintiff contends that the "at will employee" doctrine is not applicable to her, and that she was guaranteed, and not afforded, a due process hearing.

I. APPLICABILITY OF THE "AT WILL EMPLOYEE" DOCTRINE

Initially, plaintiff was employed for a term "not to exceed three years." Almost a year after plaintiff's employment with defendant, its Executive Council passed a motion to:

"... reemploy all professional staff persons, who seek reemployment with us, until June 30, 1983, with a stipulation in the contracts of any persons whoes [sic] positions are partially funded or fully funded by the NEA that these positions are contingent upon said funding, beginning with the expiration of the current contracts."

This resolution was not distributed among the professional employees. However, plaintiff claims knowledge thereof, having been present at the meeting at which the motion was passed. Based thereon, plaintiff contends that her employment term became "fixed," as per this resolution. The trial court disagreed on the basis that there was no meeting of the minds between the parties as to the term involved.

In order to have a valid contract, the parties thereto must agree on a certain object. L.S.A.-C.C. art. 1779. The object herewith is the duration of the employment contract. The Code provides for two types of contracts for hire: (1) the limited duration contract; and (2) the contract of servant terminable at the will of the parties. L.S.A.-C.C. arts. 2746 and 2747, respectively. The distinction between these two types of contracts is that under a limited duration contract the parties have agreed to be bound for a certain...