source: Caselaw Access Project

author: laCLAIBORNE, Judge Pro Tern.

license: Public Domain

text:
    Alveniz CORTES and Julio Cesar Cortes, Individually and on Behalf of Their Minor Child, Darby Cortes, and Alveniz Cortes as Administratrix of the Estate of Julio Cesar Cortes v. Phillip M. LYNCH, Jr.
    No. 2002 CA 1498.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.
    Rehearing Denied June 13, 2003.

      Mary Grace Knapp, Mandeville, Counsel for Plaintiffs-Appellants.
    Thomas Keiffer, Sr., Covington, Counsel for Defendant-Appellee.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special assignment of the Louisiana Supreme Court.

   laCLAIBORNE, Judge Pro Tern.

In this legal malpractice action, the plaintiffs appeal the granting of defendant’s motion for summary judgment upon a finding of no remaining genuine issues of material fact. For the following reasons, we affirm.

FACTS

On August 19, 1995, Julio Cesar Cortes was struck by an automobile and suffered severe brain damage. On August 25, 1995, Julio’s wife, Alvenis, individually and on behalf of Julio and their minor child, Darby, entered into a contract with Phillip M. Lynch, Jr., for Lynch to provide legal representation for the Corteses. The contract provided a sliding fee scale. Lynch engaged Irving J. Warshauer to assist in the representation. Suit was filed against several defendants. On September 6, 1996, a settlement was reached with the driver’s insurer. In May 1999, during settlement negotiations with the last remaining defendant, Lynch and Warshauer agreed to reduce their fee for settlement with the remaining defendant. On June 6, 1999, the Corteses terminated Lynch and identified Mary Grace Knapp as their attorney. The Corteses eventually settled with the last defendant.

On September 7,1999, the Corteses filed the instant legal malpractice action against Lynch. Plaintiffs’ petition alleged Lynch “deviated from acceptable legal standards,” which constituted “negligence and malpractice,” by: (1) releasing a viable defendant after little or no investigation; (2) charging plaintiffs more than the agreed-to fee; (3) failing to take adequate measures to deal with the difficulties incidental to Julio’s disability; (4) refusing to return phone calls; (5) refusing to participate in depositions; (6) having inappropriate contact with plaintiffs after Lynch’s discharge; and (7) attempting to intimidate plaintiffs and threatening to increase the fee through | ^coercion. Plaintiffs’ petition also alleged “said damages are in an amount greater than that required for a trial by jury.”

A supplemental petition received by the trial court on November 24, 1999, alleged Lynch overcharged plaintiffs and breached the contract. Plaintiffs were granted leave of court to file their supplemental petition on November 30, 1999. On December 7, 1999, plaintiffs filed a motion for a trial by jury, which the trial court denied as untimely on December 16,1999.

Lynch filed a peremptory exception raising the objections of, prescription, no right of action, and no cause of action. By judgment rendered on December 14, 1999, the trial court sustained Lynch’s exception raising the objection of “insofar as all of plaintiffs’ alleged claims pertaining to the September 1996 settlements in question are concerned.” The trial court also sustained the exception raising the objection of no cause of action, ordering plaintiffs “to amend their pleadings and allege with specificity and particularity as to time and place any remaining claims within thirty (30) days.”

On December 22, 1999, plaintiffs filed a petition for suspensive appeal of the December 14, 1999 judgment, with an attached order of appeal. However, the trial court modified the order to grant leave of court to take “supervisory writs,” noting the language of La. C.C.P. art. 1915 B(l). The writ was denied. Cortes v. Lynch, 2000-0131 (La.App. 1st Cir.4/7/00) (unpublished writ action).

On February 14, 2000, plaintiffs filed a second supplemental petition, expressly striking all prior claims. Plaintiffs then asserted Lynch was not entitled to any portion of the funds obtained from the final settlement, or that Lynch was limited to a fee based on quantum, meruit. In addition, plaintiffs alleged a claim of intentional infliction of extreme emotional distress based |4on Lynch’s actions of: (1) attempting to intimidate plaintiffs; (2) causing severe mental anguish by inappropriate contact after being discharged; and (3) conveying threats to sue plaintiffs. Plaintiffs expressly reserved their right to challenge the constitutionality of La. R.S. 9:5605, the statute providing for a one-year and a three-year peremptive period for all legal malpractice actions.

Lynch then filed a motion for summary judgment and, in the alternative, an exception raising the objection of no cause of action. Lynch contended there was an absence of factual support for the elements essential to plaintiffs’ claim of intentional infliction of emotional distress. Plaintiffs filed a memorandum in opposition, asserting Lynch’s threats to force the Corteses into bankruptcy, have Julio arrested, and seize the Corteses’ home were outrageous, and thereby met the burden of proof required of their claim.

On August 15, 2000, the trial court granted Lynch’s motion for summary judgment, dismissing plaintiffs’ claims of intentional infliction of emotional distress. Thereafter, Lynch filed another motion for summary judgment, asserting there remained no genuine issues of material fact relative to any of the plaintiffs’ complaints. In support, Lynch offered a copy of the contract, Warshauer’s engagement letter, documents pertaining to the 1996 settlement, various related pleadings filed by Lynch in this matter, correspondence referencing negotiations between plaintiffs and the final defendant, portions of the depositions of Lucio Cano, Alvenis Cortes and Alberto Suarez, Lynch’s intervention asserting an attorney’s lien, the final settlement documents, the affidavits of War-shauer and Lynch, and the December 14, 1999 and the August 15, 2000 judgments. In opposition, plaintiffs filed a memorandum.

|ROn December 12, 2001, the trial court granted the motion for summary judgment and dismissed all of the remaining claims at plaintiffs’ costs. Plaintiffs appeal, asserting the trial court erred in: (1) granting the exception raising the objection of; (2) denying plaintiffs’ request for a jury trial; (3) granting the motion for summary judgment dismissing plaintiffs’, claim for intentional infliction of emotional distress; (4) granting the motion for summary judgment dismissing plaintiffs’ remaining claims; (5) failing to recuse itself; and (6) the assessment of costs. Lynch answered the appeal, seeking an award of attorney fees for frivolous appeal.

DISCUSSION

Initially, we consider Lynch’s assertion that some of the issues raised by plaintiffs’ appeal are not properly before the court. In particular, Lynch asserts the issues of the trial court’s sustaining Lynch’s exception raising the objection of peremption and the granting of Lynch’s motion for summary judgment dismissing plaintiffs’ claim of intentional infliction of emotional distress were not timely appealed by the plaintiffs when rendered. Therefore, Lynch asserts plaintiffs may not raise these issues now.

La. C.C.P. art. 1915 B provides that a judgment dismissing less than all of the claims shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that no just reason for delay exists. The trial court’s rulings on Lynch’s peremptory exception and motion for summary judgment concerning plaintiffs’ claim of intentional infliction of emotional distress dismissed less than all of plaintiffs’ claims; however, the rulings did not include a designation as final judgments. The trial court recognized this in its designation of plaintiffs’ order for appeal of the peremptory exception ruling as a grant of leave to |nseek supervisory writs. However, while the plaintiffs did not have the right to an immediate appeal without designation of the judgment as final, they did not lose their right to appeal after final judgment was rendered adjudicating all of their claims, demands, issues, and theories of the case. See Audubon Institute, Inc. v. Chambers, 2002-0887, p. 3 (La.App. 4th Cir.10/16/02), 830 So.2d 1055, 1057. Therefore, we will consider the arguments advanced by plaintiffs concerning these rulings.

Peremption

La. R.S. 9:5605 provides, in pertinent part,

A. No action for damages against any attorney ... shall be brought unless filed ... within one year from the date of the alleged act ... or within one year from the date that the alleged act ... is discovered or should have been discovered; however ... in all events such actions shall be filed at the latest within three years from the date of the alleged act.
B. .. .The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive ... and may not be renounced, interrupted, or suspended.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud.

Lynch filed a peremptory exception raising the objection of peremption. The trial court sustained the exception pertaining to the September 6, 1996 settlement. Plaintiffs contend that the trial court erred in dismissing their allegations as perempt-ed, as they have alleged sufficient allegations to constitute fraud and are, therefore, not subject to the one-year or three-year peremptive periods.

Fraud involves a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. See La. C.C. art.1953. Fraud cannot be predicated on mistake or negligence, no matter how gross. 17 Fraudulent intent, which constitutes the intent to deceive, is a necessary element of fraud. Whitehead v. American Coachworks, Inc., 2002-0027, p. 6 (La.App. 1st Cir.12/20/02), 837 So.2d 678, 682.

Plaintiffs’ original petition specifically asserts negligence and malpractice by Lynch. Plaintiffs contend Lynch released a viable defendant, .overcharged plaintiffs, refused to return phone calls or participate in depositions, had inappropriate contact with plaintiffs, and attempted to intimidate and threaten plaintiffs. Plaintiffs’ first supplemental petition asserts Lynch breached the contract. Plaintiffs’ second supplemental petition expressly struck the allegations contained in the first two petitions and asserted that Lynch had not obtained the settlement reached with the final defendant and was not, therefore, entitled to any portion of the final settlement. In addition, it alleges Lynch had caused intentional infliction of extreme emotional distress by intimidating and threatening plaintiffs and improperly contacting plaintiffs.

None of the allegations raised by plaintiffs are sufficient to allege fraud pursuant to La. C.C. art.1953. Plaintiffs have not alleged a misrepresentation or suppression of the truth with an intention by Lynch either to obtain an unjust advantage or to cause a loss or inconvenience. Therefore, plaintiffs’ argument against the application of peremption fails. This assignment is without merit.

Intentional Infliction of Emotional Distress

Plaintiffs assert the trial court erred in granting Lynch’s motion for summary judgment striking plaintiffs’ claim of intentional infliction of emotional distress. Lynch’s motion for summary judgment contended plaintiffs could not meet their burden of proving intentional infliction of emotional distress. In opposition, plaintiffs asserted their petition set forth |swell-founded allegations against Lynch, establishing all the elements for a cause of action of intentional infliction of emotional distress.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether a summary judgment is appropriate. Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1st Cir.6/20/97), 696 So.2d 1031, writ denied, 97-1911 (La.10/31/97), 70S So.2d 29. A motion for summary judgment is a procedural device used to avoid a full-scale trial, where there is no material factual dispute. Sanders, 696 So.2d at 1034. It should be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 B.

Under La. C.C.P. art. 966, the initial burden is on the mover to show that no genuine issue of material fact exists. If the issue before the court on the motion for summary judgment is not one on which the mover will bear the burden of proof at trial, and the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense, then the nonmoving party must produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden at trial. La. C.C.P. art. 966 C(2). If the nonmoving party fails to do so, there is no genuine issue of material fact and summary judgment should be granted. La. C.C.P. arts. 966 and 967; Dreisel v. Metropolitan Prop. & Cas. Ins. Co., 01-2705 (La.App. 1st Cir.12/20/02), 836 So.2d 347, 349, writ denied, 03-0199 (La.3/28/03), 840 So.2d 575. Because it is the applicable substantive law that determines materiality, | flwhether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Sanders, 696 So.2d at 1035.

A plaintiff attempting to recover damages for intentional infliction of emotional distress must establish three elements: (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct. White v. Monsanto Co., 585 So.2d 1205, 1209 (La.1991).

The basis for the tort of the intentional infliction of emotional distress in Louisiana is La. C.C. art. 2315. The conduct must be intended or calculated to cause severe emotional distress and not just some lesser degree of fright, humiliation, embarrassment, worry, or the like. White, 585 So.2d at 1210. Liability does not attach where the actor has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional stress. Moreover, the distress suffered must be such that no reasonable person could be expected to endure it. Liability arises only where the mental suffering or anguish is extreme. White, 585 So.2d at 1210.

Plaintiffs’ second supplemental petition alleges intentional infliction of extreme emotional distress in that:

A) Lynch attempted to intimidate [plaintiffs] after [Lynch’s] discharge by threatening to improperly increase his legal fee from thirty-three and one third (33 lh%) percent to forty (40%) percent as evidenced by Lynch’s letter dated July 9, 1999, a copy of which is attached hereto, [c]ausing [plaintiffs] worry, fear and distress and diminishing their faith in current counsel.
B) Lynch caused severe mental anguish and distress to [plaintiffs] by inappropriate contact with [plaintiffs] after Lynch was discharged as their counsel of record; and by Lynch reprehensibly conveying threats to [plaintiffs] to sue them in | ^January 2000, force them into bankruptcy if they continued on with the current litigation, have [plaintiffs] arrested, and threatening to seize and sell [plaintiffs’] home, all of which resulted in severe emotional trauma, worry and insult.
C) [Plaintiffs] aver that damages in relation to intentional infliction of emotional distress exceed the requisite amount for trial by jury.

The trial court, in oral reasons, stated, “None of the instances offered by plaintiff[s] to prove their cause of action in the opinion of this Court amount to extreme and outrageous behavior.” We agree. Plaintiffs have merely alleged that Lynch attempted to increase his fees and exercise his legal rights. Moreover, Lynch’s contact with plaintiffs by letter after his discharge simply confirmed his discharge, withdrew his offer of a reduction in fees, and forwarded to plaintiffs a copy of the lien Lynch had filed. These acts do not amount to such extreme and outrageous conduct as to give rise to recovery for intentional infliction of emotional distress.

Upon Lynch’s showing that there was an absence of factual support for one or more elements essential to plaintiffs’ claim, then plaintiffs were required to produce factual support sufficient to establish that they would be able to satisfy their evidentiary burden at trial. La. C.C.P. art. 966 C(2). When plaintiffs failed to produce such support, there was no genuine issue of material fact, and summary judgment was proper. La. C.C.P. arts. 966 and 967. This assignment has no merit.

All Remaining Claims

Plaintiffs contend the trial court erred in granting Lynch’s motion for summary judgment that dismissed all plaintiffs’ remaining claims. A review of the pleadings in the instant matter establishes that plaintiffs’ original petition alleged Lynch’s actions of releasing a viable defendant, over-charging plaintiffs, failing to deal with Julio’s disability, refusing phone calls, refusing to participate in depositions, inappropriate contact, and | n threatening to increase the fee supported their claims in negligence and malpractice. Plaintiffs’ first supplemental petition also alleged a breach of contract.

Plaintiffs’ second supplemental petition expressly struck all prior pleadings and asserted Lynch was not due any fees from the- final settlement. In addition, plaintiffs asserted a claim for intentional infliction of emotional distress.

After the plaintiffs expressly struck all their prior pleadings and the trial court granted Lynch’s motion for summary judgment striking plaintiffs’ claim for intentional infliction of emotional distress, the only remaining claim by plaintiffs was their assertion that Lynch was not due any fees from the final settlement, or that Lynch was limited to a fee based on quantum meruit.

Lynch moved for summary judgment, contending he contributed to the settlement with the final defendant and was due payment for his services. Lynch asserted an absence of factual support for plaintiffs’ claim that Lynch was not due any fees from the final settlement. In support, Lynch offered, among other items, a copy of the contract, pleadings pertaining to the final defendant, correspondence referencing negotiations between plaintiffs and the final defendant, Lynch’s suit of intervention, and the final settlement documents. The plaintiffs did not offer any evidence in opposition to Lynch’s motion.

Lynch asserted there was no genuine issue of material fact concerning his right to fees, and supported that claim with evidence of his contract and samples of his work. Plaintiffs failed to offer any factual support to establish that they would be able to satisfy their evidentiary burden of proof at trial that Lynch was not due any fees for his work. Therefore, no genuine | tissue of material fact remained, and Lynch was entitled to judgment as a matter of law. See La. C.C.P. art. 966. The grant of summary judgment was proper. This assignment is without merit.

Recusal of Judge

By this assignment of error, plaintiffs assert the trial judge erred in failing to recuse himself. Plaintiffs contend the trial judge’s indifference to plaintiffs’ rights, rulings in favor of Lynch, and subsequently-revealed mistrust of plaintiffs’ counsel required recusal. Recusal of a judge is governed by La. C.C.P. arts. 151 through 161. La. C.C.P. art. 154 specifically requires that a party desiring to recuse a judge of a district court file a written motion, assigning the ground for recusation. When a party desires recusal of a judge, a written motion is required. La. C.C.P. art. 154.

The record in the instant case contains no written motion for recusal. Moreover, the trial court made no ruling concerning recusal. With no motion by the plaintiffs and no ruling by the trial court, there is nothing for this court to review. This assignment is without merit.

Costs

Plaintiffs assert the trial court erred in taxing them with costs. Plaintiffs contend that considering their petition, asserting well pleaded allegations of legal negligence and seeking dismissal of further legal fees, it was erroneous to be cast for costs.

The assessment of costs is controlled by La. C.C.P. art.1920, which provides:

Unless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause. Except as otherwise provided by law, the court may render judgment for costs, or any part thereof, against any party, as it may consider equitable.

| iaAlthough a party cast in judgment should generally be taxed with costs, the trial court may assess costs of a suit in any equitable manner. Broussard v. Razden, 98-2576, 98-2577, p. 16 (La.App. 1st Cir.12/28/99), 763 So.2d 644, 655.

We find no abuse by the trial court in the assessment of costs. Although plaintiffs asserted multiple claims against Lynch, they were unsuccessful. Under these circumstances, the assessment of costs to plaintiffs was proper. This assignment is without merit.

Request for Jury Trial

Finally, plaintiffs assert the trial court erred in denying their request for a jury trial. The courts have recognized the absolute and inviolate right of a party to a juridical cause to a trial by jury, except as limited by law and provided the requisite procedural forms are fulfilled. Adams v. City of Baton Rouge, 95-2515, p. 18 (La.App. 1st Cir.4/30/96), 673 So.2d 624, 635, writs denied, 96-1491, 96-1492 (La.9/20/96), 679 So.2d 439. Wdien a party makes a timely request and complies with the other procedural requisites, his right to a jury trial cannot be refused. Adams, 673 So.2d at 635.

La. C.C.P. art. 1733 C provides that “[t]he pleading demanding a trial by jury shall be filed not later than ten days after either the service of the last pleading directed to any issue triable by a jury, or the granting of a motion to withdraw a demand for a trial by jury.” When a party fails to raise any objection at the time of trial with regard to the lack of a jury, or seek supervisory writs on the interlocutory order denying the jury trial, and proceeds to present his case before the court, he waives his right to a jury trial. Van Meter Drilling Company v. Kubelka, 544 So.2d 547, 550 (La.App. 5th Cir.1989).

| ^Plaintiffs requested a trial by jury by motion filed December 7, 1999. The trial court denied plaintiffs’ motion on December 16,1999, as untimely. It would appear that the time for making a request for jury trial may not have expired, considering that the pleadings were not yet complete. Nevertheless, we need not consider this assignment, in view of our disposition of the other assignments.

ANSWER

Lynch answered plaintiffs’ appeal, seeking damages for frivolous appeal. Lynch asserts plaintiffs’ appeal failed to raise a serious legal question, was taken solely for delay, and was in bad faith.

The imposition of damages for a frivolous appeal is regulated by La. C.C.P. art. 2164. The courts have been very reluctant to grant damages under this article, as it is penal in nature and must be strictly construed. Guarantee Sys. Const. & Restoration, Inc. v. Anthony, 97-1877, p. 18 (La.App. 1st Cir.9/25/98), 728 So.2d 398, 405, writ denied, 98-2701 (La.12/18/98), 734 So.2d 636. In order to assess damages for a frivolous appeal, it must appear that the appeal was taken solely for the purpose of delay or that counsel does not sincerely believe in the view of law he advocates. Guarantee, 728 So.2d at 405. Considering the record, we cannot say that this appeal was taken solely for purposes of delay or that appellate counsel does not believe in the position she advocates. Therefore, damages for frivolous appeal are not warranted.

CONCLUSION

For the forgoing reasons, the judgment of the trial court is affirmed. All costs of this appeal are assessed to appellants.

AFFIRMED.

      . The judgment does not fall within the ambit of La. C.C. art. 1915 A, because the summary judgment in this case falls under the provisions of La. C.C.P. art. 966 E.


author: | .MCDONALD, J.

text:
    Claudette HURST v. SANDERSON FARMS, INC.
    No. 2002 CA 1334.
    Court of Appeal of Louisiana, First Circuit.
    May 9, 2003.
    Rehearing Denied June 13, 2003.

      Cassandra Butler, Independence, Counsel for Plaintiff/Appellant Claudette Hurst.
    Christopher Moody, Hammond, Counsel for Defendant/Appellee Sanderson Farms, Inc.
    Before: PARRO, MCDONALD, and CLAIBORNE, JJ.

      . Judge Ian W. Claiborne, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   | .MCDONALD, J.

This is an appeal of a workers’ compensation case. Claudette Hurst began working on the production line at Sanderson Farms, Inc., on April 10, 2000. She filed a disputed claim for compensation against Sanderson Farms on March 6, 2001, and averred that she had injured her right wrist on May 25, 2000. Sanderson Farms answered the claim, denying that Ms. Hurst had an injury or occupational disease and averring that Ms. Hurst was not injured as a result of any accident that happened at Sanderson Farms. Sander-son Farms further averred that Ms. Hurst had a pre-existing injury or accident that would explain her condition.

After a hearing, the workers’ compensation judge, Elizabeth Warren, ruled in favor of Sanderson Farms, finding that Ms. Hurst had not proven a compensable occupational disease under La. R.S. 23:1031.1D. Her claim was dismissed with prejudice. Ms. Hurst appealed from that judgment and made the following assignment of error:

The [workers’ compensation] judge erred in finding that the facts did not satisfy the claimant’s burden of proof because that [sic] Ms. Hurst, who began complaining of pain in May, 2000 for right wrist pain and who was required to keep working through August of 2000, met her burden of proof that her carpal tunnel occurred in the course of her employment with Sanderson Farms.

THE STANDARD OF REVIEW

In a workers’ compensation case, the appellate court’s review of fact is governed by the manifest error or clearly wrong standard. Freeman v. Poulan/Weed Eater, 93-1530 (La.1/14/94), 630 So.2d 733, 737. Where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

DISCUSSION

It was stipulated at trial that Ms. Hurst began work on April 10, 2000. She worked in the marinated chicken department, tucking the legs and wings of whole Lchickens securely into place for packaging. Ms. Hurst began to complain of soreness in her right wrist approximately six weeks after she began working for Sander-son Farms. She complained to the nurse at Sanderson Farms, Malcolm Wagner, and he suggested she apply deep heat and an ace bandage. On May 25, 2000, Ms. Hurst went to see Nurse Wagner again and was sent to Dr. Mark Daunis at North Oaks Occupational Health Clinic.

Dr. Daunis diagnosed Ms. Hurst with tendonitis and a possible ganglion cyst on her right wrist. He referred her to Dr. B.J. Chiasson, an orthopedic surgeon at the Plaza Orthopedic and Sports Medicine Clinic. Dr. Chiasson first saw Ms. Hurst on June 13, 2000. He diagnosed her with tendonitis, gave her prescriptions for cortisone and Vioxx, and referred her to a physical therapist. Dr. Chiasson allowed her to continue working with light duty restrictions and limited use of her right hand. Ms. Hurst was offered a position in a different department that was determined to be less stressful to her hands, and she continued working. She missed her next scheduled appointment with Dr. Chiasson on July 6, 2000.

Ms. Hurst saw Dr. Chiasson again on July 12, 2000, at which time he increased her Vioxx prescription to 50 mg. He prescribed continued physical therapy, continued light duty restrictions, and asked her to return in three weeks for a follow-up visit. He also indicated EMG and nerve conduction studies should be done. Ms. Hurst was given a wrist splint to wear at night.

Nurse Wagner’s records show that on August 29, 2000, someone from North Oaks Occupational Health Clinic called and reported that he/she was unable to contact Ms. Hurst and she had not been keeping physical therapy appointments. She had not been going to work at Sanderson Farms, and her supervisor had not heard from her.

On August 30, 2000, Ms. Hurst requested and was approved to see Dr. Warren Williams Sr., her choice of orthopedist. On September 7, 2000, Dr. Williams saw Ms. Hurst for the first time. He diagnosed an injury to the right | ¿wrist and recommended conservative care, including magnatherm/diathermy treatments, no use of the right wrist, and a brace.

On September 19, 2000, Ms. Hurst was at Sanderson Farms and both Nurse Wagner and Ms. Hurst’s supervisor requested a consultation with Ms. Hurst to discuss her case. Ms. Hurst refused to talk with them and left the facility. She was released from employment at Sanderson Farms that day. Approximately seven months later, on April 5, 2001, Dr. Williams diagnosed Ms. Hurst with carpal tunnel syndrome. Subsequently, Ms. Hurst filed a disputed claim for compensation, alleging she had developed carpal tunnel syndrome in the six weeks that she initially worked for Sanderson Farms.

Louisiana Revised Statute 23:1031.1 provided in pertinent part:

A. Every employee who is disabled because of the contraction of an occupational disease as herein defined, or the dependent of an employee whose death is caused by an occupational disease, as herein defined, shall be entitled to the compensation provided in this Chapter the same as if said employee received personal injury by accident arising out of and in the course of his employment.
B. An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degnerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.
* * *
D. Any occupational disease as herein fisted contracted by an employee while performing work for a particular employer in which he has been engaged for less than twelve months shall be presumed to be non-occupational and not to have been contracted in the course of and arising out of such employment, provided, however, that any such occupational disease so contracted within the twelve months’ limitation as set out herein shall become compensable when the occupational disease shall have been proved to have been contracted during the course of the prior twelve months’ employment by an overwhelming preponderance of evidence.

| ¡¡Louisiana Revised Statute 23:1031.1D heightens the claimant’s burden of proof in cases where the claimant suffers an occupational disease and has been employed with the defendant less than twelve months. In order for an occupational disease to be compensable in cases where the claimant has been employed with the defendant for less than twelve months, La. R.S 23:1031.1D requires that an employee prove causation by an overwhelming preponderance of the evidence. Stuart v. New City Diner, 99-2270 (La.App. 4 Cir. 3/15/00), 758 So.2d 345, 348. See Alford v. Environmental Monitoring, 93-0985 (La.App. 1 Cir. 10/7/94), 646 So.2d 961, 963.

The Louisiana Supreme Court has not squarely addressed the issue of what constitutes an “overwhelming preponderance of evidence,” although it has recognized in dicta that it is a “heightened” or “higher” standard of proof. Killett v. Sanderson Farms, 01-0277 (La.App. 1 Cir. 5/10/02), 818 So.2d 853, 859-860.

The legislature has used the phrase overwhelming preponderance of evidence as the statutory burden of proof in this case, but without defining the phrase. In its ordinary sense, according to our search into several dictionaries, the word overwhelm simply means to greatly overcome, to overcome by superior weight, force or numbers. We shall consider the phrase overwhelming preponderance, not as an oxymoron, but something greater than a mere preponderance and something that perhaps is closer to clear and convincing evidence, another phrase in the workers’ compensation law found in La. R.S. 23:1221(l)(c). Dibler v. Highland Clinic, 27,274 (La.App. 2 Cir. 9/27/95), 661 So.2d 588, 592. To meet the standard of clear and convincing evidence in Section 1221(l)(c), a trier of fact’s belief in a claimant’s self-serving testimony alone is insufficient. Expert testimony of an objective quality that focuses on probabilities is additionally required to meet that standard. Dibler, 661 So.2d at 592.

The only evidence put forth at trial by Ms. Hurst linking her carpal tunnel syndrome to her employment at Sanderson Farms was her own testimony at trial that she suffered wrist pain six weeks after being employed at Sanderson Farms, |fiand the fact that she was subsequently diagnosed with carpal tunnel syndrome. No medical report suggested that her activities at Sanderson Farms contributed to or caused her carpal tunnel syndrome.

Similar facts are found in Dvorak v. Melvin Jones Framing Contractors, 96-701 (La.App. 5 Cir. 1/15/97), 688 So.2d 94. In Dvorak, the claimant worked as a carpenter’s helper. He claimed that after two weeks on the job he noticed numbness in his right hand, and after an initial examination, he was diagnosed with bilateral carpal tunnel syndrome. A second consultation confirmed the diagnosis, and both doctors indicated surgery was necessary to cure the condition. Dvorak’s employer denied coverage, claiming the condition was not an occupational disease.

Dvorak’s doctor stated that, while the injury could have been work-related, an inflammatory process could also have caused it. He stated that generally one or two weeks of repetitive actions would be insufficient to cause carpal tunnel syndrome, but an individual with an unusually small carpal tunnel or a preexisting inflammatory condition could develop the condition in a short period of time.

Considering the strong presumption against finding an occupational related illness in an employee that had been on the job less than twelve months, the Dvorak court found that the claimant’s self-serving testimony and the medical testimony that failed to relate the condition to the employment with any certainty was insufficient to overcome the presumption against coverage set forth in La. R.S. 23:1301.1D.

In Ford v. Hart Associates, 605 So.2d 713 (La.App. 2 Cir.1992), Ms. Ford began working for Hart Associates in April of 1989 and stayed through January of 1990. Her job duties included applying a cleaning substance to brass lamps, vases and beds, lifting and carrying heavy trays of small parts, and cleaning those parts. Ms. Ford noticed problems with her hands after four months of employment. A month later, she saw a doctor who referred her to an orthopedic surgeon. The orthopedic surgeon diagnosed her with carpal tunnel syndrome. She |7later had surgery on both wrists, then filed for workers’ compensation, asserting that her carpal tunnel syndrome was an occupational disease.

The hearing officer found Ms. Ford failed to prove by an overwhelming preponderance of the evidence that her carpal tunnel syndrome was job related. Ms. Ford’s doctor could not determine the cause of the disease. On appeal, Ms. Ford contended that whether she contracted the condition during her work at Hart Associates, or that work aggravated a prior disease, she was entitled to workers’ compensation benefits. However, the appellate court affirmed the finding of the administrative hearing officer that Ms. Ford failed to prove her condition was job related because she failed to prove a causal connection between her occupational disease and her employment by an overwhelming preponderance of evidence.

In the present case, during the first six weeks that Ms. Hurst worked at Sander-son Farms she did not work full time but was subjected to short intervals of time that contained job rotations. She presented no medical evidence that her work at Sanderson Farms caused or contributed to her carpal tunnel syndrome. Also, just prior to her diagnosis of carpal tunnel syndrome, Ms. Hurst fell out of the bathtub and injured her right wrist.

Thus, we find no manifest error in the workers’ compensation judge’s finding that Ms. Hurst did not meet her burden of establishing by an overwhelming preponderance of evidence that her employment activities at Sanderson Farms caused her to develop carpal tunnel syndrome.

For the foregoing reasons, the judgment of the workers’ compensation judge is affirmed. Costs are assessed against Ms. Hurst.

AFFIRMED.

      . Louisiana Revised Statute 23:1031.ID was revised by 2001 La. Acts, No. 1189, § 1, effective June 29, 2001, which in pertinent part changed the burden of proof from an "overwhelming preponderance of evidence” to "a preponderance of evidence.” However, the governing law in a workers’ compensation action is that which was in effect at the time of the alleged injury. Bruno v. Harbert International Inc., 593 So.2d 357, 360 (La.1992).


author: JjDECUIR, Judge. h SAUNDERS, J.,

text:
    Aaron TAYLOR, Jr. v. OAKBOURNE COUNTRY CLUB and Michael Byrne.
    No. 02-1177.
    Court of Appeal of Louisiana, Third Circuit.
    May 14, 2003.

      Trudy M. White, Baton Rouge, LA, Aki-lah Mawusi Ali, Akilah Mawusi Ali Law Firm, Lafayette, LA, Thomas Vincent Alonzo, Attorney At Law, Lafayette, LA, for Aaron Taylor, Jr.

      Ian Alexander Macdonald, Lafayette, LA, for Oakbourne Country Club, Michael Byrne.
    Court composed of JOHN D. SAUNDERS, OSWALD A. DECUIR, and GLENN B. GREMILLION, Judges.
   JjDECUIR, Judge.

Plaintiff, Aaron Taylor, Jr., appeals the May 21, 2002 judgment of the district court, dismissing with prejudice his claim of unlawful age discrimination. For the following reasons, we affirm.

FACTS

Taylor was hired by defendant, Oakb-ourne Country Club, in 1958, at the age of 22. Taylor was initially hired as a bartender, but gradually was promoted to the position of captain of the wait staff, then to maitre d’, and finally to the position of assistant general manager, which he held for approximately fourteen years. As assistant general manager, Taylor was responsible for the food and beverage service, which included hiring and firing employees and booking parties and other functions. He also supervised the locker room and, to some extent, the kitchen. Taylor resigned from his position at Oakbourne in February of 1991. At the time he left Oakbourne, Taylor was earning approximately $39,000.00 a year.

During the late 1980s, Oakbourne began experiencing financial difficulties, largely due to a decrease in membership. As the assistant general manager, Taylor answered to the Oakbourne general manager. Robert Owen Boyd served as general manager from 1985 until his resignation in September of 1990. Boyd was replaced by Michael Byrne who began working as Oakbourne’s general manager on January 8, 1991. During the interim period, before Byrne was hired, Taylor assumed some of the general manager job duties in addition to his assistant manager duties at the club. Byrne testified that when he was interviewed for the position of general manager, he was advised that Oakbourne was having financial difficulties, and that the loss of revenues from the food and beverage service was a major area of concern. Byrne also said he was told that Taylor was very highly paid for his contribution to Oakbourne and, if hired, Byrne would have to deal with that issue.

I p.The specific facts surrounding Taylor’s resignation are disputed. In the defendants’ version of the events preceding Taylor’s resignation, on or about January 17, 1991, Byrne summoned Taylor to his office for a meeting. Byrne testified he told Taylor that if his job performance did not improve he would be laid off or demoted. Taylor told him that circulatory problems in his legs made it too painful to work, and he would have to resign anyway. Taylor then proposed a severance package of one year’s salary and continuing IRA contributions. Byrne later offered Taylor the position of head bartender and Taylor initially agreed to accept that position. However, he ultimately decided to decline the offer and resign. The board of directors approved a severance package of three months’ salary.

Taylor’s version of these events is somewhat different from Byrne’s testimony. Taylor testified that at the January 17, 1991 meeting, Byrne told him, “You know you make a lot of money. I’m going to have to fire you or demote you.” Taylor further alleged that he was never informed of any deficiencies in his work performance. Taylor’s understanding of the bar-tending position was that his salary would be reduced to $16,800.00 a year, while Byrne asserted that the total compensation as head bartender would have been $22,000.00 a year.

On the issue of his circulatory problems, Taylor testified that he never told Byrne that he could no longer work as assistant manager because of his leg problems. Rather, he contends he merely brought up the issue of Oakbourne’s responsibility for what he considered to be a work-related medical condition. According to Taylor, after Byrne mentioned that the board was considering a severance package for him, he told Byrne if the board would give him one year’s salary and contributions to his IRA until he reached age sixty-two, he would not seek redress for his leg problems.

| .¿PROCEDURAL HISTORY

Taylor originally asserted this cause of action as a pendant state law claim in a federal suit alleging unlawful age and race discrimination. The federal claims were ultimately dismissed, but the state law claims remained viable. Taylor then filed suit against Oakbourne and Byrne in state court on June 9, 1993, alleging unlawful age discrimination. On November 22, 1994, the trial court granted summary judgment and dismissed Taylor’s claim for failure to establish a prima facie case. The ruling of the trial court was reversed and remanded by this court in Taylor v. Oakbourne Country Club, 95-388 (La.App. 3 Cir. 10/04/95), 663 So.2d 379.

A two day bench trial on this matter commenced on February 13, 2002. The trial court granted defendant Byrne’s motion for involuntary dismissal because he was not Taylor’s employer and, therefore, not liable under La.R.S. 23:972. The trial court entered judgment for Oakbourne on May 1, 2002. Taylor now appeals the trial court’s ruling in favor of Oakbourne. The dismissal of Byrne is final.

The trial judge provided exteñsive written reasons for his judgment. He concluded that Taylor successfully established a prima facie case of discrimination under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). He found that the defendants’ claim that Taylor was fired for poor job performance was not proven and discussed the evidence offered in support of Oakbourne’s contention that it was trying to cut costs. The court concluded that Oakbourne successfully countered the presumption of discrimination created by Taylor’s establishment of a prima facie case. The court based this conclusion on its interpretation of Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), and held that the mere correlation between Taylor’s age and his salary was insufficient to prove illegal age discrimination.

^ANALYSIS

We are called upon in this appeal to determine the simple question of whether Oakbourne’s discharge of Taylor was improperly motivated by Taylor’s age. We are guided in this query by reference to both federal and state jurisprudence. The pertinent statutory law is Louisiana’s Age Discrimination in Employment Act (LA-DEA), which was contained in La.R.S. 23:971 et seq. , and its prohibition against age ■ discrimination is virtually identical to that under federal law. Therefore, federal jurisprudence has routinely been used to guide our state courts in the proper interpretation of the LADEA.

This court articulated the prima facie case requirements a plaintiff must establish in an LADEA suit in Taylor, 663 So.2d at 383-84. There we stated:

Because there exists little Louisiana case law interpreting the provisions of Louisiana ADEA, it is permissible to look to the case law interpreting the Federal Act for guidance. Lege v. N.F. McCall Crews, Inc., 625 So.2d 185 (La.App. 8 Cir.), writ denied, 627 So.2d 638 (La.1993). In that case, this court looked to federal jurisprudence to determine that the plaintiff in an ADEA suit must first prove a prima facie case. The plaintiff must show that:
(1) he was in the protected age group between the ages of forty and seventy,
(2) his employment with the defendant was involuntarily terminated,
(3) he was qualified to perform the job that he was employed to perform, and
(4) he was replaced by a person outside the protected age group comprising individuals between the ages of forty and seventy.

Since Taylor was decided, however, this court has recognized a change in the elements required for establishing the plaintiffs prima facie case in McCain v. City of Lafayette, 98-1902, (La.App. 3 Cir. 5/5/99), 741 So.2d 720, writ denied, 99-1578 (La.9/17/99), 747 So.2d 563, cert. denied, 528 U.S. 1118, 120 S.Ct. 939, 145 L.Ed.2d 817 (2000). “Reference to recent federal jurisprudence indicates that the final element listed above has changed since Taylor was rendered. In O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996), the United States Supreme Court found the plaintiff in an age discrimination case no longer has to establish that he was replaced by a person outside the protected class.” Id. at p. 16, 741 So.2d at 729.

A. Burden of Proof

In Taylor, p. 8, 663 So.2d at 384, we explained the burden shifting that exists in ADEA claims:

The four (4) pronged burden of prima facie production emanates from the case of McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This initial prima facie stage is but one of three steps in the evidentiary process designed to “progressively ... sharpen the inquiry into the elusive factual question of intentional discrimination.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255 n. 8, 101 S.Ct. 1089, 1094 n. 8, 67 L.Ed.2d 207 (1981). If the plaintiff-employee succeeds in presenting a prima facie case, a rebuttable presumption of intentional discrimination is established. To do so, he “need only make a very minimal showing ... that he was in the protected class, that he was qualified for the job in question, and that employees outside the protected class were more favorably treated.” Thornbrough v. Columbus and Greenville Railroad Company, 760 F.2d 633, 639 (5th Cir.1985).
Once the employee establishes a pri-ma facie case, the burden of production shifts to the employer to “rebut the presumption of intentional discrimination ... [by] articulat[ing] some legitimate nondiscriminatory reason” why the plaintiff was rejected or someone else was preferred; otherwise, the factfinder is required to find for the plaintiff.” Id.
If the employer successfully rebuts the presumption of intentional discrimination, the burden of production “shifts back to the plaintiff, albeit at ‘a new level of specificity,’ to prove that the reasons articulated by the employer are not true reaspns but only pretexts.” Id., quoting United States Postal Service Board of Governors v. Aikens, 460 U.S. 711, 714-15, 103 S.Ct. 1478, 1481-82, 75 L.Ed.2d 403 (1983).

IfrB. Standard of Review

Taylor asserts that the trial judge was legally incorrect in his application of La.R.S. 23:971 et seq., and interpreting jurisprudence and that this case, therefore, is subject to de novo review. The standard of review for appellate courts in reviewing a question of law is simply whether the court’s interpretative decision is legally correct. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709 (La.App. 4 Cir.1992). The trial court’s factual findings are subject to the manifest error or clearly wrong standard of review. LaBove v. Raftery, 00-1394, 00-1423 (La.11/28/01), 802 So.2d 566, citing Stobart v. State of Louisiana, through Dept. of Transp. and Dev., 617 So.2d 880 (La.1993).

The Supreme Court, in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 2108, 147 L.Ed.2d 105 (2000), quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993), stated:

[W]e reason[ ] that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation. Specifically, we stated:
“The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the pri-ma facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons will permit the trier of fact to infer the ultimate fact of intentional discrimination.”

In this age discrimination case, this court is compelled to review the defendant’s proffered reasons for the plaintiffs discharge and the factual determination of whether those reasons are “unworthy of credence,” as described in Hazen Paper. If the proffered reasons are not, in fact, believable, we must then determine if the plaintiffs age actually played a role in the adverse employment |7decision and “had a determinative influence on the outcome.” Hazen Paper, 507 U.S. 604, at 610, 113 S.Ct. 1701; LaBove, 802 So.2d 566 at 574.

In Hazen Paper, the United States Supreme Court granted writs to address the specific question of whether an employer’s interference with the vesting of pension benefits violates the federal ADEA. The appellate court in that case had affirmed a judgment of liability and relied heavily on evidence that the employer had fired the employee in order to prevent his pension benefits from vesting. The Supreme Court held there is no disparate treatment under the ADEA when the factor motivating the employer is some factor other than the employee’s age. The Court noted that, under the ADEA, employers cannot rely on age as a proxy for an employee’s other characteristics, such as productivity; they must focus on those factors directly. The Court further noted that:

When the employer’s decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is. Pension plans typically provide that an employee’s accrued benefits will become nonforfeitable, or “vested,” once the employee completes a certain number of years of service with the employer. See 1 J. Mamorsky, Employee Benefits Law § 5.03 (1992). On average, an older employee has had more years in the work force than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee’s age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA, see 29 U.S.C. § 631(a), may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily “age based.”

Hazen Paper, 507 U.S. at 611, 113 S.Ct. at 1706-07.

| si. Taylor’s Prima Facie Case

After reviewing the specific facts of this case, we agree with the trial court’s determination that Taylor successfully established the necessary elements of a prima facie case of age discrimination. Taylor clearly falls within the protected age group, as he was fifty-four years of age at the time of his resignation from Oakbourne.

Taylor also showed that his employment with Oakbourne was involuntarily terminated. Oakbourne contends that Taylor was not involuntarily terminated, that he resigned his position voluntarily. While it is true that Taylor did resign, the trial court found that Taylor’s resignation was involuntary. In Stephens v. C.I.T. Group/Equipment Financing, Inc., 955 F.2d 1023 (5th Cir.1992), the Fifth Circuit held that an employee’s resignation does not necessarily defeat a prima facie case of age discrimination. “Even if the plaintiff resigned from the position, he can satisfy the discharge element of an age discrimination claim by proving that he was constructively discharged.” Id. at 1027. The court went further to state that factors such as demotion and the permanence of that demotion, reduction in salary, and reduction in responsibility should be considered in a constructive discharge analysis. Id. The supreme court recognized the burden of proof required for an employee to show constructive discharge in Bannister v. Dep’t of Streets, 95-0404 (La.1/16/96), 666 So.2d 641. “To support such a claim ... an employee must prove working conditions so difficult or unpleasant that a reasonable person placed in that position would have felt compelled to resign.” Id. at 648.

Taylor presented sufficient grounds for a finding of constructive discharge. The evidence presented at trial indicates that Taylor did not want to leave Oakbourne and that he was very upset after being made aware that he was going to be demoted or fired. He was told that he could return to the position of bartender, a job he had |9held thirty-three years before. As stated by the trial judge, “returning to the position of bartender would be demeaning and humiliating” for Taylor, and under these circumstances, any reasonable employee would have felt compelled to resign.

Finally, the trial court correctly determined that Taylor successfully established the third element of a prima facie case of age discrimination, that he was qualified to perform the job of assistant general manager, which he had held for fourteen years. During the trial, the defendants showed that Oakbourne had suffered a recent decrease in revenue in the food and beverage category and insinuated this was due to Taylor’s deficiencies in his job performance. We note, however, as did the trial judge, that this decrease in revenue corresponds to new policies instituted by the board of directors, changes in which Taylor apparently had no input. A heavy assessment was levied to members, designed specifically to reduce the membership of the club, in an effort to battle a problem of overcrowding on the golf course. As a result, approximately 160 members did resign. The loss of membership necessarily resulted in a loss of revenue for food and beverage service.

To further counter the allegations that his job performance was substandard, Taylor presented glowing letters of reference from previous general managers and Oakbourne employees. He also presented letters from club members directed to the board and expressing their dissatisfaction with the treatment of Taylor’s situation and their ultimate displeasure at his leaving Oakbourne. Based on the evidence presented at trial, including these testimonials, the trial court found that Taylor was clearly qualified to perform the job for which he was hired and had successfully established the third element of his prima facie case.

|ing. Oakboume’s Rebuttal of the Presumption of Discrimination

Once the plaintiffs prima facie case is successfully established, the burden shifts to the defendant to proffer a legitimate, nondiscriminatory reason for the employment action in question, which can overcome the presumption of impermissible discrimination. Thereafter, “when all of the evidence has been presented, the overall evidence ultimately must be sufficient for the jury to conclude that age discrimination was the true reason for the employment decision.” LaBove, 802 So.2d at 574.

Oakbourne offered two justifications for its actions concerning Taylor and his position at the club. First, Oakbourne claimed that Taylor’s work performance was poor. As shown in the discussion of Taylor’s prima facie case above, there is ample evidence of Taylor’s commendable job performance, general popularity, and the level of respect he received from club members and management alike. The trial court found the job performance problems cited by Byrne were either nonexistent or not the result of Taylor’s job performance. He specifically noted in his reasons for judgment that the decision to take action against Taylor was made prior to Byrne’s arrival and, therefore, insuffi-ciencies in job performance purportedly discovered by Byrne after his arrival “could not have been the motivation for firing Taylor, but were instead merely a pretext.” We find no error in the trial judge’s conclusions on this point.

Oakbourne’s second justification for the employment decision regarding Taylor was that his demotion was the result of a decision to flatten the management structure and save the club money, rather than an act of impermissible discrimination. Byrne testified that he was given the responsibility of restoring the club to financial stability; he determined that both Taylor’s position as assistant manager and his salary | nwere detrimental to the club’s profitability. Notably, Byrne testified that he had never had an assistant manager before at any other club, and he did not believe the position was necessary. He believed elimination of the position would result in a financial savings to the club and increase efficiency. While payroll costs did initially increase under Byrne’s management due to various changes he implemented, the evidence shows that ultimately the changes resulted in a return to profitability.

Taylor maintains that this proffered motivation is pretextual. He asserts that Byrne actually added a new management level and increased Oakbourne’s overall salary costs for management personnel by the end of 1991. However, the evidence shows that only the position of maintenance supervisor was added to the management staff in order that repairs could be done in-house, thereby saving the club money on outside contractors. Taylor also alleges that he was directly replaced by Kim Tyler, a twenty-eight-year-old former associate of Byrne. Oakbourne acknowledges that Tyler was hired as director of food and beverage service at a salary of $24,000.00; however, Oakbourne insists that Tyler was not a manager and had fewer responsibilities than Taylor did as assistant manager, responsibilities that Byrne himself took over. Tyler was paid $15,000.00 less than Taylor had been paid.

Given this testimony, the trial court found that Oakbourne’s motivation for discharging Taylor was “a desire to improve the club’s profitability.” The court further explained, “Although there is a correlation between his salary and his age, this correlation is insufficient to prove illegal age discrimination under the Supreme Court decision in Hazen Paper. Having considered all the evidence and the inferences that can be drawn therefrom, the Court concludes that plaintiff has failed to prove that age was a determinative factor in his discharge.” We agree with this conclusion. We find Taylor was discharged primarily because of his high salary, not his age, and his salary |12was based only in part on his years of service with the club. His salary also reflected management responsibilities, which the new general manager assumed, and merit raises given for exemplary service, factors which have nothing to do with age.

Financial and business considerations are necessarily a part of personnel decisions and are not always improper. The trial court closely examined the decision-making process in Oakbourne’s action against Taylor and concluded that the profitability rationale offered by Oakb-ourne was not a pretext for improper age discrimination. The court also concluded that Taylor’s age was not a determining factor in his discharge. Our review reveals no error in these factual findings. Finally, we find no merit to Taylor’s argument that the trial court erred in failing to strike the testimony of Michael Byrne based on internal inconsistencies and implausibility.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to Aaron Taylor, Jr.

AFFIRMED.

SAUNDERS, J., dissents and assigns written reasons.

h SAUNDERS, J.,

dissenting.

I dissent from the majority’s ruling that Mr. Taylor’s age was not a determining factor in his discharge. The majority found that the profitability rational provided by Oakbourne was not a pretext for improper age discrimination. They state that financial and business consideration are necessarily a part of the personnel decisions and are not always improper. This is most, certainly true. In fact, personnel decisions actually based on financial and business considerations would always be proper in cases of at-will employment. I believe in the instant matter, however, that the evidence shows that the decision to dismiss Mr. Taylor from his management position at the Oakbourne Country Club could not have been based solely on financial and business considerations. I find Mr. Taylor successfully illustrated that the reasons articulated by Oakbourne Country Club from his dismissal were clearly pretextual.

As stated by the majority, Mr. Taylor clearly establishes a prima facie case of age discrimination. Once the plaintiffs prima facie case is successfully established, it falls to the defendant to proffer a legitimate, nondiscriminatory reason for the employment action in question, which can overcome the presumption of impermissible discrimination raised. Oakbourne offers two justifications for its actions concerning Mr. Taylor and his position at the club. First, Oakbourne claims |3that Mr. Taylor’s work performance was poor. As shown in the discussion of Mr. Taylor’s prima facie case in the majority opinion, there is ample evidence of Mr. Taylor’s superior performance of his assistant manager duties, as well as his general popularity and the level of respect he received from club members and management alike, to discount that justification. The trial court found it clear that the job performance problems cited by Mr. Byrne were either non-existent or not caused by Mr. Taylor’s job performance. The trial judge specifically noted in his reasons for judgment that the decision to take action against Mr. Taylor was made prior to Mr. Byrne’s arrival, and therefore, insufficien-cies in job performance purportedly discovered by Mr. Byrne after his arrival “could not have been the motivation for firing Mr. Taylor, but were instead merely a pretext.”

Oakbourne’s second justification for its employment decisions regarding Mr. Taylor is that his demotion was the result of a decision to flatten the management structure and save the club money, rather than an act of impermissible discrimination. Mr. Taylor maintains that this proffered motivation is also pretextual. After Mr. Taylor’s resignation he asserts that Mr. Byrne actually added a new management level and increased Oakbourne’s overall salary costs for management personnel. There was testimony presented at trial that a position of maintenance supervisor was added to the management staff with a starting salary of $25,000.00. In addition to this new position, Mr. Taylor alleges that he was directly replaced by Kim Tyler, a twenty-eight year old former associate of Mr. Byrne. Tyler was hired as director of food and beverage service at a salary of $24,000.00. Oakbourne claims that Tyler was not hired to replace Mr. Taylor, because the assistant general manager position had been eliminated. However, several employees who worked at Oakbourne in 1991 testified |3that Tyler replaced Mr. Taylor and performed essentially the same jobs and duties that Mr. Taylor had performed as assistant manager.

While the evidence clearly shows that Oakbourne had suffered a loss in income, the actions of Mr. Byrne do not support Oakbourne’s contention that Mr. Taylor’s demotion and pay cut were merely part of a plan intended to cut personnel costs and flatten the management structure. It seems clear that Mr. Byrne’s hiring of additional staff to fulfill the duties and obligations originally handled by Mr. Taylor actually resulted in an increase in personnel costs. This evidence conclusively supports Mr. Taylor’s contention that this justification is also a mere pretext, and should not be entertained.

Mr. Taylor also asserts that the trial judge was legally incorrect in his application of La.R.S. 23:971 et seq., and interpreting jurisprudence. The United States Supreme Court, in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 2108 (2000), stated:

[W]e reason[ ] that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer’s explanation. Specifically, we stated:
“The factfinder’s disbelief of the reasons put forward by the defendant (particularly if disbelief is accompanied by a suspicion of mendacity) may, together with the elements of the pri-ma facie case, suffice to show intentional discrimination. Thus, rejection of the defendant’s proffered reasons ■will permit the trier of fact to infer the ultimate fact of intentional discrimination.”

quoting St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 2749 (1993).

The trial judge notes in his written reasons that, under Metz v. Transit Mix, Inc., 828 F.2d 1202 (7th Cir.1987), Mr. Taylor “would have successfully proved his |4claim.” He then states that Hazen Paper Co. v. Biggins, 507 U.S. 604, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993), overruled Metz and, under Hazen Paper, the evidence presented by Taylor was “insufficient to prove illegal age discrimination.” Mr. Taylor urges that the trial court misinterpreted the impact of the Hazen Paper decision on the precedent established in Metz. I agree with Mr. Taylor on this matter and believe the trial court erred in finding that Mr. Taylor failed to prove illegal age discrimination on the part of Oakbourne.

Mr. Taylor correctly notes that the factual circumstances and specific issues addressed by the courts were distinguishable, and therefore, Hazen Paper does not specifically overrule the court’s holding in Metz. In Metz, the trial court found that Transit Mix’s decision to replace Metz with Burzloff was a desire to save the higher cost of Metz’s salary, and that in Metz’s case, salary bore a direct relationship to age. The appellate court stated that the sole issue on appeal was, “whether the salary savings that can be realized by replacing a single employee in the ADEA age-protected range with a younger, lower salaried employee constitutes a permissible, nondiscriminatory justification for the replacement.” Metz, 828 F.2d at 1205. The court went on to state, “the ADEA has consistently been interpreted by the administrative agencies charged with its enforcement and the courts to prohibit an employer from replacing higher paid employees with lower paid employees in order to save money.” Id. The intent of the ADEA is to protect older employees who, after years of service, have often built higher salary levels than their younger counterparts. Id.

The district court found that there is a distinction between whether an employer’s employment action, motivated by a desire to save money, affects a group |Kof employees or an individual employee. In Metz,. the appellate court overruled the district court’s determination, that while the decision of an employer affecting a group of employees would be impermissible, that same justification would be a legitimate, nondiscriminatory reason for replacing a single employee. The appellate court found this to be an inappropriate distinction as applied to Metz’s claim, and emphasized that the ADEA is aimed at protecting the individual employee. This is also true of the applicable LADEA statute, La. R.S. 23:972, which was in effect at the time Mr. Taylor resigned from Oakbourne. La.R.S. 23:972 provided in pertinent part:

It is unlawful for an employer to:

(1) fail or refuse to hire, or to discharge, any individual or otherwise discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment because of the individual’s age.

(emphasis added).

The appellate court in Metz recognized, however, that their use of pay as a “proxy” for age, while inescapable in Metz, is of limited value and should be evaluated on a case-by-case basis, used only where the facts of the case warrant its use. In Metz’s case, the facts suggested that seniority is a factor in compensation, and age and seniority are strongly correlated. The court specifically discussed differences in salary evaluation for age discrimination purposes, and fringe benefit evaluation. It noted that salaries are substantially within the control of the employer, while fringe benefits, such as employee pension plans, may not be. This fact, they noted, would result in a different analysis.

In Hazen Paper the United States Supreme Court granted writs to address the IfiSpecifíc question of whether an employer’s interference with the vesting of pension benefits violates the ADEA. The appellate court in that case had affirmed a judgment of liability and relied heavily on evidence that the petitioner had fired the respondent in order to prevent his pension benefits from vesting. The Supreme Court held there is no disparate treatment under the ADEA when the factor motivating the employer is some factor other than the employee’s age. The Court noted that, under the ADEA, employers cannot rely on age as a proxy for an employee’s other characteristics, such as productivity, they must focus on those factors directly.

I find the Supreme Court’s opinion in Hazen Paper does not directly overrule the Seventh Circuit’s holding that it was impermissible for the employer in Metz to use Metz’s age as a proxy for salary, and, in fact, is in accord with their ruling. The Supreme Court also stated that, “[i]n the ordinary ADEA case, indirect evidence of this kind may well suffice to support liability if the plaintiff also shows that the employer’s explanation for its decision ... is ‘unworthy of credence’.” Hazen Paper, 507 U.S. at 618, 113 S.Ct. at 1707.(Pg.613, 1707). The Court clarified its holding with respect to decisions made based on benefits such as pension, which can be, but are not always, associated with age. “Our holding is simply that an employer does not violate the ADEA just by interfering with an older employee’s pension benefits that would have vested by virtue of the employee’s years of service.”

Hazen Paper, 507 U.S. at 613, 113 S.Ct. at 1707-08.

In the present case, I find the facts show that, as was the case in Metz, Mr. Taylor’s salary was used as a proxy for age by Oakbourne. In my reading of Hazen Paper I find that, in cases such as the case sub judice, it is permissible to find that Oakbourne’s explanation for its decision is unworthy of credence. Therefore, the trial |7court erred in holding that Mr. Taylor’s claim must fail under Hazen Paper. Since both reasons proffered by Oakbourne for its employment actions with respect to Mr. Taylor are not credible, therefore, I would reverse the judgment of the trial court. The evidence supports a conclusion in this case that Oakbourn’s actions were in violation of the LADEA.

For the reasons set forth above I respectfully dissent from the majority’s ruling.

      . La.R.S. 23:971-975 have since been repealed and replaced with the Louisiana Employment Discrimination Law found in La. R.S. 23:301 et seq.

      . La.R.S. 23:971-975 have since been repealed and replaced with the Louisiana Employment Discrimination Law found in La. R.S. 23:301 et seq.


author: LPICKETT, Judge. | WOODARD, J.,

text:
    Cathy LEWIS, Plaintiff-Appellant, v. CORNERSTONE VILLAGE, INC., Defendant-Appellee.
    No. 02-1162.
    Court of Appeal of Louisiana, Third Circuit.
    May 21, 2003.

      Michael B. Miller, Crowley, LA, for Plaintiff/Appellant, Cathy Lewis.
    Debra Talbot Parker, Johnson, Stiltner & Rahman, Baton Rouge, LA, for Defendants/Appellees, Cornerstone Village, Inc., Louisiana Workers’ Compensation Corporation.
    Court composed of JOHN D. SAUNDERS, BILLIE C. WOODARD, MICHAEL G. SULLIVAN, ELIZABETH A. PICKETT and BILLY HOWARD EZELL, Judges.
   LPICKETT, Judge.

FACTS

Ms. Cathy Lewis was injured in the course of her employment with Cornerstone Village, Inc., on July 11,1994. After a claim was filed by Lewis, a settlement was reached, and a consent judgment was signed on July 22, 1998. The portion of the judgment relevant to this appeal involves the payment of weekly benefits. It states in pertinent part:

[T]hat CATHY LEWIS sustained an injury while in the course and scope of her employment with CORNERSTONE VILLAGE, INC. on July 11,1994 and as a result of that injury is entitled to temporary total disability benefits in the amount of $121.33 per week, based upon an average weekly wage of $182.00 per week, until she is capable of returning to gainful employment.

(Emphasis added.)

In March 1999, Cornerstone Village, through its insurer, the Louisiana Workers’ Compensation Corporation (LWCC), stopped paying temporary total disability benefits at the agreed rate and began paying supplemental earnings benefits. On September 1, 2001, LWCC stopped paying supplemental benefits. Lewis filed a Motion for Penalties and Attorney’s Fees, arguing the reduction and subsequent cessation of benefits was improper since the consent judgment had not been modified pursuant to La.R.S. 23:1208. The workers’ compensation judge denied the motion, and this appeal followed.

ASSIGNMENT OF ERROR

In her sole assignment of error, Lewis claims LWCC’s failure to seek a modification of the consent judgment before modifying or terminating benefits pursuant to La.R.S. 23:1310.8 entitles her to penalties and attorney fees under La.R.S. 23:1201.

^DISCUSSION

Lewis does not argue that she was incapable of “returning to gainful employment” as set forth in the consent judgment, and she has not sought to have her benefits reinstated. Instead, she argues that the original judgment must be modified by filing a motion with the Office of Workers’ Compensation and seeking another judgment. Thus, she argues the unilateral action by the LWCC was improper in this case.

La.R.S. 23:1310.8(B) states:

Upon the application of any party in interest, on the ground of a change in conditions, the workers’ compensation judge may, after a contradictory hearing, review any award, and, on such review, may make an award ending, diminishing, or increasing the compensation previously awarded, subject to the maximum or minimum provided in the Workers’ Compensation Act, and shall state his conclusions of fact and rulings of law, and the director shall immediately send to the parties a copy of the award.

LWCC argues they are relieved from the requirements of this statute because the consent judgment authorized that benefits be terminated when Lewis was able to return to work. We disagree.

A judgment must be given full effect whether it is the result of a judicial determination or the consent of the parties. Plaquemines Parish Gov’t v. Getty Oil Co., 95-2452 (La.5/21/96); 673 So.2d 1002. In this case, the agreement between the parties was made a judgment of the court, and that judgment must be given the same effect as if the judgment had been rendered by the workers’ compensation judge. La.R.S. 23:1310.8(B) requires that for “any award” to be modified, there must be an application and a contradictory hearing before the workers’ compensation judge. In this case, the LWCC terminated benefits without seeking a modification.

|4In order to prevail on her motion, Lewis must prove not that she was incapable of returning to work, as the workers’ compensation judge found, but that the LWCC terminated benefits without seeking a modification of the judgment by a workers’ compensation judge. Having met this burden, we find Lewis is entitled to penalties and attorney fees under La.R.S. 23:1201(G), which states:

If any award payable under the terms of a final, nonappealable judgment is not paid within thirty days after it becomes due, there shall be added to such award an amount equal to twenty-four percent thereof or one hundred dollars per day together with reasonable attorney fees, for each calendar day after thirty days it remains unpaid, whichever is greater, which shall be paid at the same time as, and in addition to, such award, unless such nonpayment results from conditions over which the employer had no control. No amount paid as a penalty under this Subsection shall be included in any formula utilized to establish premium rates for workers’ compensation insurance. The total one hundred dollar per calendar day penalty provided for in this Subsection shall not exceed three thousand dollars in the aggregate.

Lewis argues that two penalties are warranted in this case, one for the change in benefits from temporary total disability benefits to supplemental earnings benefits, and another for termination of all benefits. However, we find that only one penalty is warranted. The judgment in this case was an award of temporary total disability benefits, and any failure to pay those benefits, whether a reduction in payments or stopping payments altogether, constitutes a failure to pay an award under the terms of a judgment. Thus, a $3,000.00 penalty is authorized. We also award attorney fees in the amount of $5,000.00 for prosecution of this claim in the Office of Workers’ Compensation and on appeal.

DECREE

The judgment of the workers’ compensation judge is reversed. We award penalties in the amount of $3,000.00 and attorney fees in the amount of $5,000.00 to IsCathy Lewis. All costs of this appeal are assessed against Cornerstone Village, Inc., and the LWCC.

REVERSED AND RENDERED.

WOODARD, J., dissents and assigns written reasons.

SULLIVAN, J., dissents.

| WOODARD, J.,

dissenting.

Respectfully, I must dissent from the majority’s position.

The consent judgment, by its very terms, terminates the award' of benefits when “she [Ms. Lewis] is capable of returning to gainful employment.” Therefore, La.R.S. 23:1310.8 is inapplicable because no modification of the judgment was required before terminating the benefits; rather, Ms. Lewis agreed upon a course of action that would save both time, energy, and money for her and her employer, not to mention for the courts, by including in the consent judgment, a provision for her benefits to automatically terminate when the requisite condition was met.

Certainly, the consent judgment could have been more artfully drafted. However, Ms. Lewis should not complain since it was her extremely able and experienced attorney who drafted it. Nevertheless, the judgment does not indicate who is to make the initial determination of when Ms. Lewis “is capable of returning to gainful employment.” However, this omission is problematic only if the parties do not agree on when such time arrived. Here, Ms. Lewis did not disagree with Cornerstone that the condition in the consent judgment was fulfilled. Thus, her contention that the employer’s conversion of benefits was unilateral is without merit. Accordingly, the majority penalizes Cornerstone, simply, for abiding by a judgment.

IsJf Cornerstone had terminated benefits before Ms. Lewis was able to return to work, then she would have had a cause of action against it for violating the judgment. However, she does not even argue this point but, instead, merely, argues that the portion of the judgment that is unfavorable to her should be ignored. Notwithstanding, a party cannot simply piecemeal a consent judgment, giving part, but not all, effect; namely, requiring the employer to pay the benefits per the consent judgment but not complying with its qualifying condition regarding payment of benefits.

I agree with the employer’s contention that “to ignore the very language contained within the present judgment would be. a violation of the judgment in and or itself.” Moreover, it is tantamount to not giving a valid judgment its effect, which would be against public policy.

      . Sigur v. Sigur, 94-1736 (La.App. 4 Cir. 3/16/95); 652 So.2d 1046.