author: JOAN BERNARD ARMSTRONG, Chief Judge. BELSOME, J.,

text:
    Lynn SEARS v. HOME DEPOT, USA, INC. and Billy Rosen.
    No. 2006-CA-0201.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 18, 2006.

      Gregory A. Dupuy, Clarence 0. Dupuy, Jr., Dupuy & Dupuy, Metairie, La, for Plaintiff/Appellant.
    D. Michael Dendy, New Orleans, LA, for Defendant/Appellee, Billy Roson.
    Shelley M. Sullivan, Cornelius R. Heu-sel, Jones Walker Waechter Poitevent Carrere & Denegre, New Orleans, LA, for Defendant/Appellee, Home Depot U.S.A., Inc.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY and JUDGE ROLAND L. BELSOME).
   JOAN BERNARD ARMSTRONG, Chief Judge.

liThe plaintiff, Lynn Sears, appeals from the trial court’s summary judgment dismissing her claim for damages allegedly caused by intentional discrimination in employment based on race and false imprisonment. On May 28, 1999, Ms. Sears filed suit against Home Depot, USA, Inc. and Billy Roson, claiming that she was employed by Home Depot as a cashier, ultimately supervised by Mr. Roson at the time of her “termination and/or constructive discharge.”

Home Depot answered, asserting as affirmative defenses the exercise of reasonable care to prevent and to correct promptly any complained of behavior, limitations and Ms. Sears’s failure to take preventative or corrective opportunities provided by Home Depot. Home Depot also claimed its actions were motivated solely by legitimate, nondiscriminatory factors and that it acted in good faith at all times. Furthermore, Home Depot alleged that Ms. Sears was not terminated, but voluntarily resigned from her position. Home Depot denied vicarious liability for Mr. Roson’s alleged conduct, averring that such conduct, if it occurred, was |2outside the course and scope of his employment, not employment rooted, or incidental to the duties of employment. Home Depot also affirmatively alleged Ms. Sears’s failure to mitigate damages.

Mr. Roson answered similarly, denying Ms. Sears’s claims against him and claiming the affirmative defense of limitations and good faith.

The case was consolidated on March 19, 2003 in the Civil District Court with No. 99-7063, Chaney v. Home Depot, USA, Inc. Because counsel for the defendants had not been served with a copy of the consolidation motion, the trial court vacated its consolidation motion on November 22, 2004.

On February 22, 2005, counsel for the plaintiff filed a motion to set for trial on the merits, certifying that the case was then ready for trial.

Home Depot moved for summary judgment on April 1, 2005, and Mr. Roson filed a similar motion on April 20, 2005. For the reasons stated in the supporting mem-oranda, the trial court granted summary judgment dismissing Ms. Sears’ claims against both defendants on July 7, 2005.

In support of the motions for summary judgment, the defendants provided a copy of Ms. Sears’ deposition taken on January 4, 2001 and the affidavit of Tammy Es-skew, Home Depot’s Employment Practices Manager. Attached to Ms. Esskew’s affidavit are copies of Ms. Sears’ resignation letter, of Home Depot’s [.-¡written harassment and discrimination policy, of Home Depot’s Open Door Policy and of Ms. Sears’s charge of discrimination and dismissal and notice of rights received from the EEOC in respect to an EEOC claim filed by Ms. Sears. The record also contains portions of Ms. Esskew’s oral deposition taken on March 9, 2001 and of Mr. Roson’s deposition taken on June 29, 2004 in the Chaney case.

The Home Depot Orientation Handbook in 1997 provided in pertinent part:

Equal Employment Policy
The Home Depot is an equal opportunity employer. The company will not, under any circumstances, discriminate against an associate with regard to race, age, sex, color, national origin, religion or disability.
Harassment/Discrimination Policy
Home Depot is committed to ensuring that our associates work in an environment of mutual respect, free of harassment and discrimination. Home Depot does not tolerate harassment or discrimination of associates, customers, or vendors with regard to race, sex, color, age, religion, national origin or disability.
If you believe you are being harassed or exposed to conduct you find offensive, ask the person to stop immediately. If the conduct continues, contact a member of management. If you are not comfortable discussing the problem with your manager, or if you believe that your concern is not being appropriately resolved, contact your District Manager, Human Resource Manager or Human Resource Director.
The Impact Line is also available for associates who wish to report harassment, but want to remain anonymous. Impact Line: 1-888-22IMPACT.
Open Door Policy
LEven with open communication, your immediate supervisor may not be able to solve all your concerns or problems. Home Depot cares about these concerns.
If your Department Supervisor or Assistant Manager cannot help you, the problem should be taken next to the Store Manager, District Manager, Divisional Vice President, and finally, to the Divisional President.
Keep in mind that your Human Resource manager is available to help you with any problems. Because we care about your concerns, no retaliation is ever taken for using the Open Door Policy.

The evidence establishes that Ms. Sears is a person of African descent, hired by Home Depot on February 7, 1994 as a cashier, becoming a full-time employee on February 13, 1995. She testified that she received increases in her hourly wages throughout her years at Home Depot, and was promoted to head cashier in August of 1997. She voluntarily resigned that position and returned to a position as cashier on December 15, 1997. In her deposition, Ms. Sears denies that this voluntary demotion was discriminatory. Five months later, on May 19, 1998, Ms. Sears sent the following letter of resignation to Home Depot:

To Whom It May Concern:
I, Lynn Sears, am turning in my two weeks notice of my termination of my employment. At the present time I am unable to meet my job expectations. As [“you” is struck out] management knows I have a minor child with special needs. I [“ ⅛” is struck out] also have some personal issues that could affect my job performance. As a four year employee I’ve had a lot of great times here at the Home Depot. And I hope to return one day in the near future. I hope that I won’t cause a great inconvenience to anyone. But I like being the best of the best. And right now I’m off track and I need to regroup. It’s been a pleasure.
Thanks in Advance,
| ¡¿Signed] Lynn Sears

Ms. Sears testified that approximately a year after she began working at Home Depot, one of her sons was diagnosed with diabetes, following which she requested and received an assignment to a newly-created hardware cashier position and a schedule change to accommodate the situation. This requested schedule change was in effect from her initial request until she resigned from her job. It is suggested that the position of hardware cashier was created to accommodate Ms. Sears’s needs.

Although Mr. Roson allegedly “put pressure” on her to work a flexible schedule, she admitted in deposition that Mr. Roson wanted all his employees to do so, and that he allowed her continually to work the accommodation schedule.

Ms. Sears’s son’s condition did not improve, and in May of 1998 she was advised by a social worker that if the child did not improve, he could be removed from Ms. Sears’s custody. In response, she met with her supervisor, Don Quinn, the store manager, Mr. Roson, and Ms. Brenda Long, a Home Depot vault associate, and asked that she receive home health care for her son through Home Depot’s benefits program. Mr. Rosen immediately contacted Home Depot’s benefits department, and the group conferred by phone for about two hours. Ms. Sears was advised that the health care benefit would be given to her, but that it would not go into effect for two or three weeks. The reason for the delay was in order to confirm the situation with the child’s doctor and process the paperwork. One or two days after the meeting, Ms. Sears called to advise Home Depot she would not be able to work on weekends until she obtained adequate care for her |fison. Mr. Roson acquiesced in this. Ms. Sears admitted on deposition that she was not disciplined for this refusal to work on weekends. Nonetheless, on the next workday, she submitted her letter of resignation, giving her two weeks’ notice, citing personal reasons both in the letter and in her deposition. Ms. Sears worked for several days following submission of her letter, and used vacation days for the remainder of the two weeks’ notice. She testified that she attended a Home Depot picnic following her resignation.

In her petition, Ms. Sears makes the following claims of racial discrimination: (1) she was hired at a lower wage than “white” employees; (2) she was not promoted as quickly as were “white” employees; (3) Home Depot denied its employees of African descent medical treatment; (4) Home Depot required its employees of African descent to undergo more frequent drug tests than its “white” employees; and (5) “white” employees were allowed requested schedule changes while employees of African descent were not.

Discriminatory Scheduling: Although Ms. Sears claims that two white employees were treated more favorably than she with respect to scheduling, it is uncontroverted that Home Depot acceded to her scheduling requests. Furthermore, Ms. Sears admitted that one of the “white” employees she identified as a comparable did not work as a full-time employee, and she was not aware of the other allegedly comparable “white” employee’s schedule.

Discriminatory Wages: Ms. Sears claims that two “white” employees were hired at higher rates of pay than her starting rate of $6.00 per hour. Ms. Sears testified that she had worked previously as a Department Head at Sam’s Club, earning $7.70 an hour, and had asked to be paid at that same rate by Home Depot. However, on her Home Depot employment application, she listed no work | ^experience for the two or three years between the time she left Sam’s Club and the time she applied for a position at Home Depot. The “white” employee in question was hired at a rate of $6.50 per hour; however, it is uncontroverted that that employee came to Home Depot directly from Sam’s Club, and had no break in her employment history. Therefore, the cases are not similar. The second “white” employee cited by Ms. Sears was employed as a Sales Associate, a position qualitatively different from Ms. Sears’s job as a cashier. Different positions with different qualifications, even if they are superficially comparable, are not “similarly situated.” Ceasar v. Lamar University, 147 F.Supp.2d 547, 552-53 (E.D.Tex.2001).

Discriminatory Promotion: Ms. Sears alleges that two employees were promoted before she was promoted. She claims that she was given full-time status after about a year, in 1995, and was denied a supervisory position in 1996. She also claims that her promotion to the position of head cashier August 25, 1997 was discriminatory, but not her subsequent voluntax-y demotion back to her position as a cashier. Ms. Sears filed her suit on April 29,1999, three and four years after accrual of the first two claims, and nineteen months after accrual of the third. Thus, these claims are untimely.

Discriminatory Drug Testing: Ms. Sears testified that when she was promoted to head cashier she was required to pass a drug test. She admitted in her deposition that she had no knowledge of whether or how frequently other employees were tested. The Home Depot Orientation Handbook of 1997 provided in its Substance Abuse Policy that the company may require associates to be tested for substance abuse for promotion.

| sDiscriminatory Discipline: Ms. Sears testified at her deposition that she was never disciplined substantially in any way during the course of her employment with Home Depot. She testified that Assistant Manager Daniel Boone disciplined her on one occasion. Ms. Sears had missed a bus and called to tell Mr. Boone she was running late because she had missed the bus. He told her to call him back, which she did, but spoke to another employee and told him that the bus had not yet arrived. She called Mr. Boone again, and testified that he told her not to call back, but to get to work when she could. When she arrived, Mr. Boone reprimanded her, and told her that she should call in advance and could not “just come to work when I very well feel like it.” Ms. Sears compared this situation to that of a “white” employee whose daughter had been injured. That employee was allowed to come to work when the child finished her therapy and, according to Ms. Sears, was not required to call each time in advance. There is no evidence that this “reprimand” was made a part of Ms. Sears’ permanent employment record, or that it constituted anything more than a verbal admonition to call under similar circumstances, that is, if she missed a bus.

Discriminatory Lack of Expression of Care: Ms. Sears contends that District Manager Larry Frenkel discriminated against her because he never called to ask how her son’s medical condition was progressing. In her deposition, Ms. Sears admits that Mr. Frenkel never spoke to her, and specifically never said anything racially offensive to her. While expressions of solicitude by management are likely to contribute to a pleasant workplace, the law does not require such expressions.

Hostile Work Environment: Ms. Sears claims that certain Home Depot employees made racially insensitive comments in her presence, which comments |awere not directed to her nor did she complain to Home Depot’s management concerning the comments. She testified that a department supervisor, whom she testified held a position under management, said that he would never “work under a black man and no black man would ever be” his boss. She claims that an assistant manager agreed with racial comments made by Mr. Rosen, but did not make racial comments himself. Ms. Sears testified that Mr. Ro-son said, in her presence, “I don’t know why blacks get so upset when white people call them n-s when they call each other n-s all the time.” She also testified that Mr. Rosen said that African-Americans were more concerned with their appearance than with owning a home. or car, and commented that he would have to buy sunglasses because another African-American employee had so many gold teeth. Ms. Sears testified that these incidents occurred between August and December of 1997, when she was head cashier. She testified that some time prior to that time, Mr. Roson said she was pretty and asked her if she had any “white” ancestors because of her light skin color.

Discrimination in Provision of Health Care: Ms. Sears testified that during the May 1998 meeting to work out a plan for obtaining home health care benefits for her son, Mr. Roson and Mr. Quinn would not allow her to leave the room. After this alleged detention, however, she remained in the room during a two-hour conference call concerning provision of this benefit for her son. She admitted at her deposition that at the conclusion of the meeting, she was advised that this benefit would be arranged for her son. Ms. Sears claimed at her deposition that during this meeting, Mr. Roson made an offensive comment questioning why African-American men do not take care of their children. However, she admitted that when she brought this complaint to the EEOC, and was interviewed by an ^^African-American agent, her affidavit reflected only that Mr. Roson asked where the child’s father was and asked why the father was not helping to take care of the child. That claim was not included in the petition in the instant case.

Ms. Sears admitted on deposition that she was aware of the anti-harassment and discrimination policies and procedures Home Depot had in place, and acknowledged having watched a video presentation and having received training in the policies and procedures. The record contains her signed acknowledgement of receipt of the Home Depot Handbook as well. Her only complaint prior to her resignation was that a sales associate was earning more than she was. She confronted Mr. Roson about this disparity, since she had believed he was no more qualified than she; however, the positions of Sales Associate and Cashier did not command the same salary.

Shortly after that complaint, Mr. Roson offered Ms. Sears a promotion to the position of Head Cashier, with a pay increase. Ms. Sears accepted the position on August 25, 1997, but now complains that the promotion was an act of employment discrimination because Mr. Roson allegedly told her he wanted her to “watch the blacks”. Ms. Sears admitted that Mr. Roson never told her that she did not otherwise deserve this promotion.

Appellate courts review summary judgment de novo, using the same criteria applied by trial courts to- determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/2000), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La. C.C.P. art. 966 A(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, |nanswers 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.

Ms. Sears assigns as error the trial court’s allocation of the burden of proof in this case and contends that the trial court made findings of fact, weighed evidence and made credibility determinations, all of which were inappropriate in the context of summary judgment. There are no reasons for judgment in the record. However, since we review this summary judgment de novo, we will apply the current summary judgment standard and the standard for burden of proof to the materials submitted in support of and in opposition to the motions for summary judgment. ■ Under the amended summary judgment procedure, the burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966 C(2).

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or h?as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.C.C.P. art. 967; Danna v. Barq’s, Inc., 612 So.2d 253, 255 (La.App. 4 Cir.1992). Mere conclusory allegations, improbable inferences and unsupported speculation will not support a finding of a genuine issue of material fact. King v. Phelps Dunbar, LLP, 01-1735, p. 16 (La.App. 4 Cir. 4/2/03), 844 So.2d 1012, 1022. Such allegations, inferences and speculation are insufficient to satisfy the opponent’s burden of proof, even if contained in a deposition. King, supra at pp. 16-17, 844 So.2d at 1023.

Ms. Sears assigns as error the trial court’s granting summary judgment regarding subjective facts such as intent, knowledge, malice and good will. However, the jurisprudence does not support this argument. Even in cases where elusive concepts such as motive or intent are at issue, summary judgment may be appropriate if the opposing party rests merely upon conclusory allegations, improbable inferences, and unsupported speculation. Haney v. Delta Petroleum Co., Inc., 01-0636, p. 5 (La.App. 4 Cir. 3/6/02), 811 So.2d 1200, 1204.

Ms. Sears contends that the district court’s judgment should be set aside because it allegedly is inconsistent with the Minute Entry of the United States District Court for the Eastern District of Louisiana in Chaney v. Home Depot, USA, Inc., et al., CM Action No. 99-1792. The federal court remanded Mr. Chaney’s employment discrimination suit to state court, along with two other cases against the same defendants, Donahue v. Home Depot, and Sears v. Home Depot . The issue before the court was Home Depot’s allegation that the plaintiffs 11shad joined their claims against the company and Mr. Roson fraudulently to defeat federal jurisdiction of the claim against the company. The federal standard is one of an arguable and reasonable basis for predicting that state law might impose liability on the facts involved, accepting as truthful all allegations contained in the complaint (petition). The court noted that in resolving fraudulent joinder claims, courts may pierce the pleadings and take into consideration summary judgment-type evidence, including affidavits and depositions. However, the ruling turned on the allegations of the petition, which the trial court found stated a prima facie case on its face. Pretermit-ting the fact that a decision of a federal district court to remand a case to state court is not binding on this Court’s review of motions for summary judgment, we note that the federal court was not presented with motions for summary judgment, and its ruling on the remand is in no way dispositive of the motions filed in state court.

Louisiana provides an action for employment discrimination based on race in La. R.S. 23:331 et seq. and La.R.S. 51:2231 et seq. La.R.S. 23:332 provides in pertinent part:

A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(1) Intentionally fail or refuse to hire or to discharge any individual, or otherwise to intentionally discriminate against any individual with respect to his compensation, or his terms, conditions, or privileges of employment, because of the individual’s race, color, religion, sex, or national origin.
(2) Intentionally limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect | uhis status as an employee, because of the individual’s race, color, religion, sex, or national origin.

Because this statute is similar in scope to the federal anti-discrimination prohibitions found in title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), Louisiana courts have routinely looked to federal jurisprudence for guidance in determining whether a claim has been asserted under La.R.S. 23:332 A. Plummer v. Marriott Corp., 94-2025 (La.App. 4 Cir. 4/26/95), 654 So.2d 843, 848.

It is clear that, as a matter of law, Ms. Sears’s claims of employment discrimination, all of which were brought under state law, are governed by the one-year liberative prescription of La.C.C. art. 3492. See, King v. Phelps Dunbar, LLP, 98-1805, pp. 6-7 (La.6/5/99), 743 So.2d 181, 186-87. The claims of disparate pay and promotion relate to discrete acts that put Ms. Sears on notice of the alleged acts of discrimination, starting the prescriptive period. See Huckabay v. Moore, 142 F.3d 233, 240 (5th Cir.1998). The first act of discrimination, by Assistant Manager Boone, occurred on February 7, 1994, when she began working at Home Depot. The claim that a “white” male employee was paid more although he had worked for a shorter period of time, albeit as a Sales Associate rather than as a Cashier, occurred prior to August of 1997 when Ms. Sears was promoted to Head Cashier. The claims that white employees were (a) made a full-time employee before she, and (b) promoted to a cashier supervisory position before she was, arose before she was made a full-time employee in early February of 1995. Ms. Sears’s claim that she was promoted to head cashier because of her race arose in August of 1997. Ms. Sears filed the instant action on April 29, 1999. There is no allegation or evidence of facts giving rise to a plea of contra non valentem. | ^Furthermore, Ms. Sears has not addressed the prescription issue in her appellant’s brief. Thus, all the foregoing claims are time barred.

Ms. Sears argues in brief that she has demonstrated a claim for employment discrimination based on not being allowed to work a set schedule from 8:00 in the morning until 5:00 in the evening. This schedule was necessary because her insulin-dependent child needed to receive an injection between 5 and 6 p.m. daily, and she was the only person competent to administer this injection. However, she admits that she was allowed to work the set schedule, although Mr. Roson encouraged her to find a qualified baby-sitter so that she could work the store’s standard flexible schedule. There is no allegation or evidence that she was forced to jeopardize her son’s health by reason of the hours she worked, as the evidence shows without contradiction that she did work the set schedule she requested following her request.

Ms. Sears argues in brief that her voluntary demotion from the position of head cashier to her previous position of cashier constitutes an adverse and discriminatory employment action. In order to constitute an adverse employment action, conduct must be an ultimate employment decision. Mattern v. Eastman Kodak Co., 104 F.3d 702, 707 (5th Cir.1997). These ultimate employment decisions include hiring, firing, promotion and compensation. Id. However, in her deposition, she testified that she asked to be removed from the position of head cashier. At her deposition, Ms. Sears testified that Mr. Roson had told her he would like her to help him to understand the black employees, and she did not want to do so and resigned the position. In her affidavit, Ms. Sears claims that she resigned the head cashier position because she was unable to keep up the schedule of leaving at 10:30 p.m. and returning at 5:30 a.m. Whichever reason, if either, is 11fitrue, the decision to resign the promotion was Ms. Sears’s decision, and was voluntary.

Ms. Sears also argues that her resignation was a constructive termination, and that she resigned because she was not allowed to remain at home on weekends to attend to her son’s special needs and was denied home health care benefits for her son. Although Ms. Sears argues in brief that she was required to work weekends until home health care benefits for her son could be arranged, this argument is inconsistent with her deposition testimony. She testified that when she called in to report that she could not work weekends until the benefits were in place, Mr. Roson responded by saying, “Well, all right.” She also admitted on deposition that she was not disciplined for having failed to work the weekend prior to her resignation. Furthermore, she admits on deposition that the company had approved her for home health care benefits, and the delay was occasioned only by the necessity of obtaining a physician’s certification and completing paperwork.

Ms. Sears also contends that she was subjected to working in a hostile workplace. In order to state a claim for a hostile work environment, Ms. Sears has the burden of proving that (1) she belongs to a protected group; (2) she was subjected to harassment; (3) the harassment was motivated by discriminatory animus (race); (4) the harassment affected a term, condition, or privilege of employment, and (5) the employer knew or should have known of the harassment and failed to take proper remedial action. Brooks v. Southern University and Agric. and Mech. College, 03-0231 (La.App. 4 Cir. 7/14/04), 877 So.2d 1194, 1220, unit denied, 04-2246 (La.11/19/04), 888 So.2d 208; Hicks v. Central Louisiana Elec. Co., Inc., 97-1232, p. 3 (La.App. 1 Cir. 5/15/98), 712 So.2d 656, 658-59. The issue in this case is whether Ms. Sears has shown that she will be able ]17at trial to prove the fourth element, that the harassment affected a term, condition, or privilege of employment. Ms. Sears contends that the hostile work environment caused a constructive discharge, and that this constructive discharge was a tangible employment action.

Hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment. National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 n. 10, 122 S.Ct. 2061, 2074 n. 10, 153 L.Ed.2d 106 (2002). Sexual harassment cases are instructive in deciding cases involving claims of racial harassment.

Ms. Sears claims that various comments were made to her or in her presence from August to December of 1997 when she held the position of head cashier. According to her deposition testimony, she overheard a comment from an assistant manager that he would never work under a black man, and that no black man would ever be his boss. She also claims that she overheard a coworker agree with Mr. Roson when the latter allegedly made derogatory comments about African-Americans. Ms. Sears testified to seven comments made by Mr. Rosen to support her claim of a hostile work environment: (1) expressing a lack of understanding why African-Americans get upset when white people use racial epithets but not when other African-Americans use the same racial epithets; (2) expressed a belief that African-Americans are more concerned about their clothes and appearance than about homes and cars; (3) said he would have to buy sunglasses because another African-American employee had so many gold teeth; (4) told Ms. Sears that before he was married he “ran [with] a bunch of women” and that she Improbably would have been one of these women; (5) told Ms. Sears she was pretty; (6) commented on Ms. Sears’s light skin color and asked her which member of her family was white; and (7) disparaged African-American men, including Ms. Sears’s son’s father, for not taking care of their children.

The issue is whether these incidents, taken in the context of the four years Ms. Sears worked at Home Depot, were so egregious as to alter the conditions of employment and destroy equality in the workplace. DeAngelis v. El Paso Mun. Police Officers Ass’n, 51 F.3d 591, 593 (5th Cir.1995). The United States Supreme Court has emphasized that the federal employment discrimination laws are not intended to perform the function of a “civility code”. Proof that alleged conduct is both objectively and subjectively offensive is necessary to withstand summary judgment and to filter out complaints attacking the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing. Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993).

In order to prevail on the defendants’ motion for summary judgment on the hostile workplace issue, Ms. Sears must show a genuine issue of material fact as to whether the conduct is so hostile and abusive that a reasonable person would have been offended by it and also that she, subjectively, actually was offended. Furthermore, was the conduct so egregious as to alter the conditions of employment and destroy equality in the workplace. The lack of any contemporaneous complaints by Ms. Sears argues strongly against there being |igevidence of subjective offense. Evidence of objective offense rising to discriminatory changes in the terms and conditions of employment is also lacking. While Mr. Roson’s comments, if true, are clearly insensitive and indicative of extraordinary ignorance on his part, we are constrained by the Supreme Court’s injunction that isolated incidents, unless extremely serious, and offhand comments will not amount to discriminatory changes in the terms and conditions of employment. Faragher, supra. In determining whether a work environment is objectively hostile or abusive, all circumstances must be analyzed, including the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance. Shepherd v. Comptroller of Public Accounts of State of Texas, 168 F.3d 871, 874 (5th Cir.1999).

Having reviewed the evidence of record and the applicable jurisprudence, we are forced to conclude that, while insensitive and reflecting profound ignorance on the part of the speaker, these racial comments do not rise to the level necessary to support a declaration that the work environment is objectively hostile or abusive. In Jackson v. Flint Ink North American Corp., on rehearing, 382 F.3d 869 (8th Cir.2004), the court considered whether six incidents of racially derogatory language and graffiti from managers and coworkers during an eighteen-month period constituted an objectively hostile work environment. The plaintiff testified by deposition to several incidents including the use of racial epithets by his managers and coworkers and the appearance of racially derogatory graffiti. He testified that he heard his supervisor refer to him as “that damn n-” after an altercation during which the plaintiff threatened two co-workers after one of them spit either [2non his foot or somewhere in his work area. He also testified that as he was leaving the plant manager’s office, he heard the manager use the term “black” or “damn black” in some unspecified context. He also testified to four instances in which his coworkers had made racially offensive remarks. One used the phrase “n-rigging” at a picnic table. Another co-worker called the plaintiff a “n-”. A third coworker once expressed his dislike for music the plaintiff was listening to saying “We don’t listen to that damn black music around here, n-s — , radio.” The same co-worker, during the incident in which the plaintiff was concededly “in the face of’ another co-worker who had spit in his work area, pulled the other co-worker away and exclaimed, “f n-”. Finally, the plaintiff testified that Ku Klux Klan graffiti, consisting of Mr. Jackson’s name, the letters KKK and a burning cross, appeared in the shower area and near the back door. Other comments were found concerning the fact that the plaintiff had been found sleeping in the workplace. The court held that an objective observer would regard the combination of Klan-related graffiti with Mr. Jackson’s name as a threat of serious bodily harm if not death to Mr. Jackson, and, when this threat is combined with all of the other incidents that Mr. Jackson complained of, the matter survived the defense motion for summary judgment. The court noted, “We admit that this matter is not altogether free from doubt and we think that this case is on the cusp of submissibility.” Jackson, 382 F.3d at 870.

In the instant case, there is no evidence of such a serious threat of bodily harm, nor were there examples of use of racial expletives directed at Ms. Sears.

Even a single racially derogatory remark is certainly regrettable, and we doubtless seek an environment when racial, ethnic and sexual slurs will have been eliminated from all workplaces. However, as a matter of law, the isolated | ⅞1 examples to which Ms. Sears testifies cannot support a finding of a hostile workplace.

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, consisting of two elements: (1) that the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) that the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. Faragher v. City of Boca Raton, 524 U.S. at 777-78, 118 S.Ct. at 2278. This defense is not available, however where the supervisor’s harassment culminates in a tangible employment action, such as discharge or demotion. Faragher v. City of Boca Raton, 524 U.S. at 808, 118 S.Ct. at 2293. The Supreme Court did not address directly the issue of whether a “constructive discharge” constitutes a “tangible employment action” that would deprive the employer of the affirmative defense.

In Pennsylvania State Police v. Suders, 542 U.S. 129, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004), the Supreme Court announced the burden of proving that a constructive discharge was caused by a hostile work environment. The plaintiff must first establish that discriminatory conduct in the workplace was so pervasive that it created an environment abusive to the employee. Once that is established, the plaintiff must then demonstrate that the abusive environment was so intolerable that resignation qualified as a fitting response. Furthermore, an employer may defend against a constructive discharge claim by showing both that it had installed a readily Inaccessible and effective policy for reporting and resolving harassment complaints and that the plaintiff unreasonably failed to avail herself of that preventive or remedial apparatus. Pennsylvania State Police v. Suders, 542 U.S. at 134, 124 S.Ct. at 2347. This affirmative defense is unavailable to an employer if the plaintiff resigns in a reasonable response to an employer-sanctioned adverse action officially changing her employment status or situation. The Supreme Court gave as examples a humiliating demotion, extreme cut in pay, or a transfer to a position in which the employee would face “unbearable working conditions.” Id.

Ms. Sears has not produced any evidence of an employer-sanctioned adverse activity. She admitted on deposition that she did not work weekends following the home health benefits meeting, and was not disciplined in any way for this. She was not demoted, her pay was not extremely reduced and she was not transferred to an unbearable position. Furthermore, Ms. Sears’s letter of resignation makes no mention of any allegations that would give rise to a finding of constructive discharge. She says only that she is unable to meet her job expectations and has personal issues that could affect her job performance. She expressed hopes to return to Home Depot in the near future and that her departure would not cause a great inconvenience. She closes her letter with the words, “It’s been a pleasure.” For the foregoing reasons, Home Depot in entitled to prove the affirmative defense previously discussed.

Home Depot had the burden of showing that there was no genuine issue of material fact as to its affirmative defense.

While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any Incase when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing an unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. Faragher v. City of Boca Ratonil 524 U.S. at 778, 118 S.Ct. at 2279.

The evidence is uncontroverted that Home Depot maintained a hotline and open door policy for complaints such as those noted in this suit. It is also uncon-troverted that these policies were posted in the break room, and Ms. Sears admitted having received a copy of the Home Depot employee orientation material. There is no evidence that Ms. Sears availed herself of the anonymous or non-anonymous procedures to report her claims of Mr. Ro-son’s offensive language.

Based on the uncontroverted evidence of record, we find that Home Depot demonstrated that it exercised reasonable care to prevent and correct harassing behavior promptly. Furthermore, it is clear that Ms. Sears did not reasonably take advantage of the preventive and corrective policies and procedures provided by Home Depot. Because Home Depot proved its affirmative defense, we are forced to conclude that Ms. Sears has not met her burden of proving that she was constructively discharged or that her resignation was, as a question of law, the result of harassment affecting a term, condition or privilege of employment. Because of this failure to meet the burden of proof under La.C.Civ.P. art. 966, we are compelled to affirm the summary judgment granted in favor of Home Depot on the hostile work environment claim.

| ¡.¿Since counsel for Ms. Sears moved in the trial court to set the case for trial, the matter was certified as ready for trial, allowing the inference that discovery has been completed.

For the foregoing reasons, we are compelled, as was the trial court, to find that Ms. Sears will not be able to prove her case against Home Depot and that summary judgment in that defendant’s favor was properly granted.

Ms. Sears also makes claims of false imprisonment and intentional infliction of emotional distress against Mr. Roson. According to the petition, the only action that could possibly be considered false imprisonment was employee Don Quinn’s locking a conference room door on May 15, 1998, allegedly on Mr. Rosen’s instruction, after, according to the petition, Ms. Sears “became very upset and began to cry hysterically” during the health benefits conference. Therefore, the claim is untimely.

The final claim is Ms. Sears’s allegation that Mr. Roson intentionally inflicted emotional distress upon her. Ms. Sears’s letter of resignation is dated May 18, 1998. Ms. Sears makes no allegation of any conduct on Mr. Roson’s part after she left Home Depot. Therefore, that claim is also untimely.

For the foregoing reasons, we affirm the judgment of the trial court granting summary judgment in favor of Home Depot USA, Inc. and Billy Roson.

AFFIRMED.

BELSOME, J., concurs with reasons.

BELSOME, J.,

concurs with reasons.

hi concur in the result reached by the majority. To overcome a motion for summary judgment the non-mover must show that there are genuine issues of material fact to be presented to a fact finder. The allegations set forth by Ms. Sears suggest despicable behavior. However, a de novo review of the record does not provide any supporting evidence for the claims asserted. Therefore, I agree that the trial court must be affirmed.

      . In her appellant's brief, Ms. Sears suggests that Mr. Roson. is guilty of sexual harassment; however, that claim is not raised in the petition filed in the trial court or in the assignments of error on appeal.

      . That case resulted in a summary judgment dismissing Mr. Chaney’s suit based on a claim of racial discrimination against Home Depot. The trial court’s summary judgment was affirmed by this Court in 2005-CA-1484.

      . Ms. Sears refers in brief to an opposition to the motions for summary judgment, affidavits of Ms. Sears, Elzie Berry, Home Depot’s Regional Human Resources Manager and of former Home Depot employee Roy Lee Chaney. She also attached to her brief copies of documents filed in the United States District Court. However, none of these documents are a part of the record on appeal. As material outside of the record, these documents will not be considered.

      .Ms. Esskew testified on deposition that the handbook is available to all employees. In addition, the company's anti-discrimination policy is posted in the break room. However, Ms. Sears testified at her deposition that she was not aware of the Impact Line described therein and had never used it.

      . At some point, according to Ms. Sears, Mr. Roson suggested to Ms. Sears that her ex-husband and the child's father should take a more active interest in the situation, whereupon Ms. Sears began to cry hysterically, and Mr. Quinn locked the conference room door at Mr. Roson’s request until she had regained her composure.

      . The record does not contain Ms. Sears's opposition to the motions for summary judgment. Attached to the appellant’s brief are copies of Ms. Sears's deposition taken on January 4, 2001; the affidavit of Roy Lee Chaney; the deposition of Elzie Berry, Home Depot Human Resources manager, and Ms. Sears's affidavit dated May 25, 2005. while the affidavit bears the Civil District court heading, it is not date stamped nor is it conformed to show when or by whom it was filed, if, in fact, it was filed in that court.

      . A copy of that Minute Entry is attached to the appellant's brief, but is not a part of the record on appeal. For that reason, we have not considered it substantive evidence in this case; however, it is useful background to the discussion of this assignment of error.

      . In a footnote, the federal court notes that "[a]lthough the court will issue separate rulings with regard to those cases, the underlying logic and arguments presented by the parties in each case are identical.”

      . Formerly La.R.S. 23:1006 et seq.

      . The latter statute, which provides a procedure for redress through the Louisiana Commission on Human Rights, is not applicable to Ms. Sears's claims, because she has not availed herself of that process.

      . The notice element is not required in a hostile environment case where it is alleged that the employee’s supervisor committed the alleged harassment. Nash v. Electrospace System, Inc., 9 F.3d 401, 405 (5th Cir.1993).

        . This is not on its face a racial comment

      . This is not on its face a racial comment.


source: Caselaw Access Project

author: PATRICIA RIVET MURRAY, Judge.

license: Public Domain

text:
    Jennifer A. MITCHELL and Linda Laborde v. Dr. C. Edward GENO, Ochsner Foundation Hospital and Clinic, Dr. Richard McConnell, Dr. Carl J. Lavie, J. Kitch, R.N., N.P., Dr. Kathryn Elmore, Dr. Kevin McKinley, Dr. Stephen Jenkins and Ochsner Clinic Foundation.
    No. 2006-CA-0243.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 18, 2006.
    Rehearing Denied Dec. 15, 2006.

      Roy Raspanti, Metairie, LA, for Plaintiffs/Appellants.
    Don S. McKinney, John L. Fontenot, Adams and Reese, L.L.P., New Orleans, LA, for Defendants/Appellees.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, Judge LEON A. CANNIZZARO JR.).
   PATRICIA RIVET MURRAY, Judge.

11 Plaintiffs, Jennifer Mitchell and Linda Laborde, appeal the granting of a motion for summary judgment dismissing their medical malpractice action against three of the individual defendants, namely Dr. Richard McConnell, Dr. Kathryn Elmore, and Dr. Kevin McKinley. For the reasons that follow, we affirm.

FACTS AND PROCEEDINGS BELOW

Plaintiffs, daughters of Odrey Mitchell, filed the instant action against Ochsner Hospital, six physicians, and one nurse alleging that Mr. Mitchell’s death from an intracerebral hemorrhage on July 10, 2001 was the result of the defendants’ negligence. Specifically, plaintiffs alleged the defendants breached the standard of care by administering anticoagulant medications to Mr. Mitchell without first conducting a CT scan, despite evidence that Mr. Mitchell had undergone a recent trauma (he had fallen and bruised his chest).

In response to interrogatories propounded by the defendants, the plaintiffs listed Dr. Terrence Shaneyfelt as their only expert witness. The defendants deposed Dr. Shaneyfelt on June 14, 2004. On October 4, 2004, three of the | ¿physician defendants, namely Dr. Richard McConnell, Dr. Kevin McKinley, and Dr. Kathryn Elmore, moved for summary judgment on the basis that the plaintiffs would not be able to meet their burden of proof at trial on account of a lack of expert testimony to show a breach in the standard of care by either of the three physicians. Attached to the motion for summary judgment were excerpts from Dr. Shaneyfelt’s deposition. In these excerpts, Dr. Shaneyfelt testified that based upon his review of Mr. Mitchell’s medical records, he could not say that Dr. McConnell, an emergency room physician; Dr. McKinley, a neurologist; or Dr. Elmore (whose specific role in the treatment of Mr. Mitchell was unclear from the deposition excerpts) had breached the applicable standard of care.

In opposition to the motion for summary judgment, plaintiffs submitted three affidavits and additional excerpts from Dr. Sha-neyfelt’s deposition. In these excerpts, Dr. Shaneyfelt indicated repeatedly that the size of the bruise on Mr. Mitchell’s chest, which size was not noted on any of the medical records, would affect his opinion as to whether certain doctors had breached the standard of care. In one of the submitted affidavits, Jennifer Mitchell, Odrey Mitchell’s daughter, averred that on July 3, 2001, she had observed a bruise “the diameter of a softball or grapefruit” located in the upper middle area of her father’s chest. In the second affidavit, Dr. Shaneyfelt averred that in view of the affidavit of Jennifer Mitchell and the information she had provided regarding the size of the bruise, he now believed that the administration of anticoagulant drugs to Odrey Mitchell had been contra indicated. Dr. Shaneyfelt specifically averred that Dr. McConnell should | ahave seen the size of the bruise on Mr. Mitchell when he took his physical, and that Dr. McKinley should have seen it “during the physical examination prior to the heart catheterization which he performed on Mr. Mitchell.” Based on these two assumptions, Dr. Sha-neyfelt opined that Dr. McConnell and Dr. McKinley had fallen below the standard of care when they had allowed anticoagulant drugs to be administered to Mr. Mitchell. The third affidavit submitted by the plaintiffs was that of Dr. Gerald Liuzza, a member of the medical review panel that had rendered a unanimous decision in favor of the defendant physicians; in his affidavit, dated November 11, 2004, Dr. Liuzza merely stated that “after further reflection” he dissented from the opinion of the panel.

Defendants submitted a reply to the opposition to their motion, to which reply they attached additional excerpts from Dr. Shaneyfelt’s deposition testimony. In these excerpts, Dr. Shaneyfelt, an internist, testified that he was not board certified in emergency medicine; in addition, when asked whether he believed he was qualified to give an opinion about the standard of care for an emergency room physician in 2001, Dr. Shaneyfelt responded, “No.”

The trial court heard the motion for summary judgment on November 12, 2004. At the conclusion of the hearing, the trial court granted the defendants’ motion. On November 29, 2004, he trial court signed a written judgment granting the motion and dismissing with prejudice the plaintiffs’ claims against Dr. McConnell, Dr. McKinley, and Dr. Elmore. The plaintiffs filed a motion for new trial, which was heard and denied on February 4, 2005. The trial court signed a [Judgment to this effect on February 22, 2005. The plaintiffs now appeal the granting of the motion for summary judgment.

APPLICABLE LAW

According to La. C.C.P. art. 966(B), summary judgment shall be rendered “if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” Part C of the article further states, in pertinent part:

(C)(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

Appellate courts review summary judgments de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Johnson v. State of Louisiana/University Hospital, 2001-1972, p. 2 (La.App. 4 Cir. 1/16/02), 807 So.2d 367, 369 (citing Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181 c/w 99-2257 (La.2/29/2000), 755 So.2d 226, 230). The supporting documentation submitted by the parties should be scrutinized equally, and there is no longer any overriding presumption in favor of trial on the merits. Id.

I sin a medical malpractice action, such as the instant case, the plaintiffs have the initial burden of proving that the defendants either lacked or did not exercise “the degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians” who are “actively practicing in a similar community or locale and under similar circumstances.” See La. R.S. 9:2794 (West 2000). Additionally, under the statute the plaintiffs must prove causation, i.e., that they suffered injuries they would not otherwise have incurred as a proximate result of the defendants’ breach of the applicable standard of care.

Moreover, because of the complex medical and factual issues involved, a plaintiff generally cannot sustain his burden of proof in a medical malpractice action without the opinion of one or more qualified medical experts. Johnson v. State of Louisiana/University Hospital, supra, p. 5, 807 So.2d at 371. Therefore, unless the case involves some obvious act from which a lay person can infer negligence, such as amputating the wrong limb or leaving a sponge in a patient’s body, the absence of expert testimony as to any of the essential elements of the plaintiffs malpractice claim will preclude the imposition of liability. Johnson, supra.

DISCUSSION OF LAW AND FACTS

In the instant case, to prevail on the motion for summary judgment, defendants had to show that the plaintiffs lack factual support for an essential element of their claim. As this case does not involve an obvious act from which a lay person can infer negligence, the only way for the plaintiffs to show that the defendant physicians breached the applicable | (¡standard of care is by expert medical testimony. At the time the motion for summary judgment was decided, Dr. Shaneyfelt was listed as the plaintiffs’ sole expert. Therefore, unless Dr. Shaneyfelt’s testimony, taken at face value, establishes that each of the three defendants breached the particular standard of care applicable to him or her, the defendants are entitled to summary judgment.

Considering the record, we find that the trial court properly granted summary judgment dismissing the three defendants. With regard to Dr. Elmore, there clearly is no issue, as there is no evidence that Dr. Shaneyfelt ever changed his opinion from his original deposition testimony, at which time he testified that he did not believe Dr. Elmore had breached the applicable standard of care. With regard to the other two defendants, Dr. McConnell and Dr. McKinley, Dr. Shaney-felt stated in his affidavit that he had altered his original opinion based upon the statement of the decedent’s daughter that she had observed a large bruise on her father’s chest, and that his final opinion was that these two physicians had violated the standard of care by failing to notice the bruise during their respective examinations of Mr. Mitchell. However, we do not find this change of opinion to be relevant in light of certain other statements made by Dr. Shaneyfelt in his deposition, which statements he did not later retract.

Specifically, with regard to Dr. McConnell, Dr. Shaneyfelt testified that he himself did not believe he was capable of giving an opinion as to the standard of care for an emergency room physician in 2001. Plaintiffs fyoffered nothing to refute this testimony. In our view, this testimony by Dr. Shaneyfelt renders meaningless his subsequent opinion as to Dr. McConnell’s negligence. Plaintiffs therefore failed to controvert defendants’ assertion that plaintiffs lacked qualified expert testimony to prove their case against Dr. McConnell.

With regard to Dr. McKinley, deposition excerpts submitted by the defendants show that Dr. Shaneyfelt twice agreed that Dr. McKinley was a neurologist who saw Mr. Mitchell only after the brain hemorrhage had been identified. Dr. Shaneyfelt also agreed that Jeff Kitch was the nurse-practitioner who performed the initial cardiology exam on Mr. Mitchell, and that Dr. Lavie was the cardiologist who handled Mr. Mitchell’s case; neither Mr. Kitch nor Dr. Lavie are part of the motion for summary judgment considered herein. Finally, Dr. Shaneyfelt testified that he himself was not board certified in either neurology or cardiology. In light of this testimony, Dr. Shaneyfelt’s subsequent affidavit opining: “Dr. McKinley should have seen it [the chest bruise] during the physical examination prior to the heart catheterization which he performed on Mr. Mitchell, which heart catheterization entailed the administration of Heparin [an anticoagulant drug],” does not make sense. This statement, which Dr. Shaney-felt uses as the basis for his opinion that Dr. McKinley violated the standard of care, conflicts irreconcilably with Dr. Sha-neyfelt’s earlier acknowledgement that Dr. McKinley is the neurologist who saw Mr. Mitchell only after the heart catheterization had been performed, not the doctor who performed the catheterization or the nurse who performed the exam prior the catheterization. The plaintiffs have presented no evidence to refute that Dr. |sMcKinley is a neurologist, which fact is supported by the record as a whole. Because the opinion as to Dr. McKinley’s negligence given by Dr. Shaneyfelt in his affidavit is based upon completely unsupported, nonexistent facts, it is inherently unreliable. Without Dr. Shaneyfelt’s opinion, plaintiffs have not presented sufficient evidence that they will be able to meet their burden of proof at trial on this issue.

The plaintiffs argue on appeal that summary judgment was wrongly granted because the trial court is not allowed to evaluate credibility when deciding a motion for summary judgment. See Johnson v. State/University Hospital, supra, p. 3, 807 So.2d at 369. This argument is misplaced because Dr. Shaneyfelt is an expert witness. Even if Dr. Shaneyfelt’s credibility is assumed, to successfully defeat the motion for summary judgment with expert testimony, plaintiffs also had to show that their expert was qualified to give the opinions he gave and that his opinions had some factual basis in the record. However, in the instant case, Dr. Shaneyfelt’s own testimony reveals that he was not so qualified, and the testimony itself contradicts the very facts upon which his later opinion is supposedly based. Under these circumstances, we must conclude that the plaintiffs failed to present sufficient evidence to defeat the motion for summary judgment. Therefore, the trial court did not err by granting the motion.

CONCLUSION

Accordingly, for the reasons stated, we affirm the judgment of the trial court granting summary judgment and dismissing plaintiffs’ action 19against Dr. Kathryn Elmore, Dr. Richard McConnell, and Dr. Kevin McKinley.

AFFIRMED.

      . We do not consider the affidavit of Dr. Liuz-za to be significant because Dr. Liuzza was not listed as an expert who would testify at trial, nor was he deposed. Moreover, his affidavit gives no reason for his change of opinion.


author: LEON A. CANNIZZARO, JR., Judge.

text:
    KOSTMAYER CONSTRUCTION, INC. v. SEWERAGE & WATER BOARD OF NEW ORLEANS.
    No. 2005-CA-1184.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 18, 2006.

      George B. Recile, Chehardy Sherman Ellis Breslin Murray Recile & Griffith, L.L.P., Metairie, LA, for Plaintiff/Appel-lee, Kostmayer Construction, Inc.
    Harold D. Marchand, Attorney IV, Jacob Taranto III, Deputy Special Counsel, Gerard M. Victor, Special Counsel, Sewerage & Water Board of New Orleans, New Orleans, LA, for Defendant/Appellant, Sewerage and Water Board of New Orleans.
    (Court composed of Judge JAMES F. McKAY, III, Judge TERRI F. LOVE, Judge LEON A. CANNIZZARO, JR.).
   LEON A. CANNIZZARO, JR., Judge.

LThe defendant, the Sewerage and Water Board of New Orleans (“S & WB”), appeals from a district court judgment rendered in favor of the plaintiff, Kostmayer Construction, LLC (“Kostmayer”) We affirm the judgment of the trial court.

FACTS

Kostmayer has been a marine contractor in the New Orleans area for 20 years. Pursuant to a public bid, the S & WB awarded Kostmayer a $1,169,200.00 contract to build improvements and refurbishments to Drainage Pumping Station No. 13 (“DPS 13”) located in Algiers, Louisiana. Burk-Kleinpeter, Inc. (“BKI”), a civil engineering firm under contract to the S & WB, and its subcontractor, C & S Consultants, prepared the plans and specifications for the project.

The contract contained three major line items of work: driving new steel pile walls to strengthen the bulkhead between the pump station and the Intracoastal Canal; pouring concrete on the bottom of the discharge basin; and revising the levees on either side of the pump station and the discharge basin.

| ¡jKostmayer began driving the steel sheet piles in April 2002, using a large crane mounted on a barge, which floated in the Intracoastal Canal at the discharge basin. Sometime thereafter, Kostmayer’s work crew experienced an electrical current or shock as they were guiding the piles into place. Initially, it was merely an irritant, but as the job progressed, the current became stronger and posed a safety hazard to the workers.

In addition to providing the plans and specifications, BKI also provided contract administration for the project. On May 22, 2002, Kostmayer contacted BKI’s chief field engineer, Adam Mehn, requesting permission to shut down the job until the safety hazard could be corrected; BKI agreed.

BKI notified the S & WB of the shutdown, and the parties, including the S & WB, immediately began an investigation to find the source of the current. They first suspected a stray current from the pump station or an unknown underground wire, or a malfunction in the crane’s electrical system. These possible sources were ex-eluded within the first day or two of the investigation.

Within the next few days, employees from the S & WB’s electrical department ran tests, which indicated that the probable culprit was Radio Frequency Interference (“RFI”), a relatively obscure phenomenon. RFI will occur when a structure of conductive metal located in a field of transmitted radio waves acts as a receiving antenna and absorbs those radio waves into electrical energy in the structure. In this case, the investigators believed Kost-mayer’s 180-foot steel | crane boom was acting as a giant radio antenna, collecting and focusing the electrical energy from three radio station transmission towers in the vicinity.

Kostmayer immediately hired an expert from Highlines Construction Company, a contractor specializing in building towers for electric utility companies, to assist. The Highlines expert recommended that Kostmayer use nylon straps to lift the steel piles in the hopes of breaking the electrical current. Kostmayer tried this, using a simple strap around the load, rather than a steel cable. While this simple change reduced the voltage, it did not reduce it enough to ameliorate the hazard.

BKI then requested the S & WB to authorize BKI to hire an electrical expert at the S & WB’s expense, to recommend a solution to the problem; the S & WB agreed. BKI hired a local electrical engineer, David Kanter. After initial inquiry, Mr. Kanter determined that the problem was too specialized for him, so he hired an expert from North Carolina, Lawrence Behr.

Mr. Behr confirmed the problem was RFI and, after conducting several tests, recommended a much more complex arrangement of nylon straps and slings to insulate the crane and break the electrical circuit in the boom antenna. With Mr. Behr’s help, Kostmayer. immediately implemented the suggestion. It was successful and Kostmayer resumed work immediately.

By then, however, the project had been shut down from May 22 through June 18, 2002, a total of 27 days. Kostmayer submitted a proposed change order | ¿or claim for $108,247.48, which included the cost of repairing or replacing the crane boom hoist cable damaged by the current ($10,-683.10), and $97,614.38 for costs of personnel and equipment maintained during the down-time. BKI, believing the change order was justified, recommended that the S & WB approve it. After the S & WB refused the change order, Kostmayer filed suit.

Following trial, the court awarded Kost-mayer damages in the amount of $108,297.48, as well $79,963.66 for the re-tainage owed under the contract and reasonable attorney’s fees to be determined at a later hearing. In her reasons for judgment, the trial judge stated that Kostmayer had not breached the standard of care owed by a contractor, and the electrical arcing which caused the delays and damages was an unforeseeable event. The trial court further held that pursuant to the contract the parties did not expect the contractor to bear the burden imposed by the unforeseen condition. The S & WB appealed.

ASSIGNMENTS OF ERROR

The S & WB raised nine assignments of error:

1. The trial court erred in determining that “the fact that the Board approved the hiring of experts to solve the electrical problem undercuts its entire defense to this case.”
2. The trial court erred in its interpretation of paragraph 26 of the contract between the S & WB and Kostmayer where the court said, “it is recognized that the Contractor is not to be charged with liquidated damages or any excess cost for delay in completing work when the delay is due to unforeseen causes beyond the control of the contractor and without fault or negligence on [its] part.”
|s3. The court erred in determining that radio frequency interference was a changed or differing condition.
4. The court erred in its interpretation of paragraph 31 of the specifications entitled “Extra Work.”
5. The court erred in applying paragraph 26 of the contract specifications to the facts of this case relative to “unforeseeable causes.”
6. The court erred in determining that “it [had] not been established that Kost-mayer had a duty to conduct any testing with regard to these towers given their distance from the site.”
7. The court erred in finding that “the S & WB breached its agreement with Kostmayer when it refused Kostmayer’s claim for additional costs and damage to the crane and that it owes Kostmayer the sum of $108,297.48.”
8. The court erred in awarding Kost-mayer attorney fees for “withholding the retainage.”
9. The trial court erred in not determining that Kostmayer failed to mitigate its damages.

STANDARD OF REVIEW

It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). The issue to be resolved by the reviewing court is not whether the trier of fact is right or wrong, but whether the fact finder’s conclusion was reasonable. Bonnette v. Conoco, Inc., 2001-2767 (La.1/28/03), 837 So.2d 1219. If the trial court or jury’s findings are reasonable in light of the record reviewed in its entirely, the court of appeal may not reverse. Id.

| ^DISCUSSION

We now address the issues raised by the S & WB in the nine assignments of error, though not in that order.

Assignment of error 6

With respect to the sixth assignment of error, the S & WB contends that Kostmayer had a duty to inspect the work site and conduct tests in accord with OSHA regulations prior to beginning the work, but it failed to do so. According to the S & WB, OSHA regulation 1926.550 specifically set forth the steps that had to be taken prior to working near transmission towers where an electrical charge could be induced in the equipment to be used. It argues that the construction contract required the contractor to perform all work in accord with OSHA regulations and, thus, if Kostmayer had conducted a proper site inspection before the work began, then it would have been aware that the radio transmission towers near DPS 13 might pose a problem to the workers operating a crane at the project site.

James Kostmayer, the president of Kostmayer, testified that he personally participated in the site inspection that took place at DPS 13 before entering into the contract. According to him, the site inspection allows prospective bidders to come |7to the project site to familiarize themselves with the area and the physical properties of the landscape. Mr. Kost-mayer acknowledged that during the inspection at DPS 13, he saw the radio towers in the distance, but in his thirty years of experience as a civil engineer, he had never encountered RFI as a result of working near radio towers. For that reason, he testified, it never occurred to him to conduct any tests to determine whether RFI would occur. Mr. Kostmayer also explained that in order for a contractor such as Kostmayer to learn of RFI prior to entering into the contract, it would have to tow a crane to the job site to test for the specific problem. Such action would have been highly unusual at a pre-bid inspection because it would have been too costly to do. Towing a crane to the job site, alone, would have cost a contractor approximately $5000.00, he estimated.

James Pritchett, an expert in the field of crane operation and OSHA regulations relative to crane operation and inspections, testified on behalf of Kostmayer. He opined that Kostmayer complied with OSHA regulations and the prescribed industry standards relative to crane use before and after commencing work on the project. Mr. Pritchett testified that he did not consider the radio transmission towers, which could be seen from a distance from DPS 13, to be “near” the job site as contemplated by OSHA regulations. Thus, in his opinion, Kostmayer had no reason to suspect the towers were dangerous or could pose a threat to the workers at the site, which would have imposed a duty on it to conduct further tests.

Mr. Kanter, the electrical engineer initially consulted by BKI with the S & WB’s approval, testified that he had never encountered the RFI problem in his thirty years as an electrical engineer and that the phenomenon could not have been anticipated or identified without the expertise of a specialist in the field. He, too, |adid not consider the transmission towers to be “near” the work site within the meaning of the OSHA regulations.

The foregoing testimony and other evidence in the record indicates that Kost-mayer conducted a reasonable site inspection prior to bidding on the project. The rarity of the RFI phenomenon, coupled with the expense in towing a crane to the job site, would have made any further inspection unreasonable and overly burdensome. Thus, we find no error in the trial court’s finding that Kostmayer’s site inspection was reasonable under the circumstances. Moreover, the evidence supports the finding that Kostmayer complied with OSHA regulations in performing the work under the contract. Thus, we find no merit to the issue raised in the sixth assignment of error.

Assignments of error 2, 3 and 5

Assignments of error two, three, and five encompass the issues of whether the RFI was an “unforeseeable” cause or condition as contemplated under paragraph 26 of the contract specifications and, if so, which party was responsible for bearing the cost for the delay in completing the contract as a result of the unforeseeable condition. The S & WB contends that the RFI was a foreseeable condition, which would exculpate it from any liability to Kostmayer. It points out that the conditions at the work site were not unique in that radio towers were common and that contractors had performed work “using cranes in the vicinity of such towers for years.” Alternatively, the S & WB asserts that RFI was not a condition that actually existed on the S & WB property where the contract work was being performed and, thus, it was not responsible for any changes in the contract as a result of the condition.

13As previously mentioned, Mr. Kost-mayer and Mr. Kanter both testified that they had never encountered RFI at a job site in their thirty years of experience as practicing engineers. Also, Mr. Pritchett testified that Kostmayer could not have anticipated the electric arcing problem pri- or to beginning the work. Contrary to the S & WB’s assertion, Mr. Kanter testified that even though the source of the electrical current, ie., the radio towers, was not located on the work site, it created a physical condition on the site, which was not foreseeable. The S & WB presented no evidence to contradict this testimony. Thus, we find no error in the trial court’s determination that RFI was an unforeseeable condition that Kostmayer could not have discovered prior to commencing work at the job site.

Furthermore, upon review of the contractual provisions, we find the trial court correctly held that the parties did not intend for Kostmayer to bear the burden imposed by any unforeseen condition. Specifically, paragraph 26, under the general provisions of the contract, provides, in pertinent part:

However, the contractor shall not be charged with liquidated damages or any excess cost for delay in starting or coto-pleting the work or in making deliveries of materials when the said delay is due to unforeseeable causes beyond the control of the Contractor and without fault or negligence on his part, [emphasis added]

The interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. To ascertain the parties’ intent, the court must first look to the words and provisions of the contract. Amend v. McCabe, 95-0316 (La.12/1/95), 664 So.2d 1183; R.J. Messinger, Inc. v. Rosenblum, 2003-2209, 2003-2210 (La.App. 4 Cir. 5/11/05), 904 So.2d 760. When the words of a contract are clear and lead to no absurd consequences, no further interpretation may be made in search of the parties’ intent. La. C.C. art. 2046.

|inIt is undisputed that all parties agreed that the work could not continue until the safety hazard posed by the electrical arcing was resolved and the delay, to some extent, was unavoidable. Also, the evidence in the record reflects that Kostmayer incurred additional costs and damages as a result of the delay. It is clear from paragraph 26 of the general provisions of the contract that the parties did not intend for Kostmayer to bear the additional costs incurred by the delay in completing the contract as a result of the unforeseen RFI and electrical arcing experienced by the workers at the job site.

Assignment of error 4

Similarly, in the fourth assignment of error the S & WB contends the trial court wrongly applied paragraph 31 of the general provisions of the contract to find the costs incurred by Kostmayer as a result of the delay constituted “Extra Work” under the contract. Specifically, it contends that extra work as contemplated by the contract included work required by the S & WB pursuant to a change order that was not part of the original contract. The S & WB argues that extra work did not include the adjustments made by Kostmayer to its crane in order for it to perform work under the contract. Kost-mayer, the S & WB contends, was solely responsible for its own equipment and safety at the job site.

Paragraph 31 of the general specifications, relative to “Extra Work,” provides, in part:

When, for the proper prosecution of the contract, work becomes necessary which has not been provided for in any clause of the contract, the Engineer will issue an order, and the Contractor shall perform the work stated in the order. Such work, frequently called “Extra Work” may be paid for in any or all of the following ways as determined by the Engineer in each case ...

Inin this case, both Mr. Kostmayer and Mr. Kanter testified that a contractor could not have anticipated RFI at the time the bids were submitted. Thus, the contractor could not have included the cost to repair the crane boom hoist cable damaged by the electrical arcing and the cost to adapt the crane to counter the RFI problem into the bid price. Although the repairs to the hoist cable and the use of additional nylon straps and slings to insulate the crane were not requested or specified by the S & WB in a change order, it is undisputed that these repairs and modifications were necessary to complete the project. Thus, we find no error in the trial court’s determination that these items constituted extra work pursuant to paragraph 31 of the general provisions of the contract to be paid by the S & WB.

Assignment of error 7

In the seventh assignment of error, the 5 & WB challenges the trial court’s findings that the S & WB breached the contract with Kostmayer when it rejected Kostmayer’s claim for additional costs and damage to the crane and that it owes Kostmayer the sum of $108,297.48. The S 6 WB contends that the additional costs awarded at trial are excessive.

In support of its argument, the S & WB offered the expert testimony of Philip Lachin, a civil engineer with expertise in analyzing delay claims in construction contracts. Mr. Lachin testified that the claim submitted by Kostmayer was not adequately documented. He noted that Kost-mayer provided no evidence to substantiate the additional labor costs or the rates requested for the equipment used in the project. Regarding the equipment, he noted the rates submitted by Kostmayer appeared to reflect standard in-use operating rates, which are not generally applicable to idle equipment. Mr. Lachin explained the difference between excusable, inexcusable and compensable delays. According to him, if the |19delay resulted in an unforeseen condition that was not caused by the owner, it would, at best, be an excusable delay, but not necessarily a compensable one. Mr. Lachin also opined that Kostmayer failed to demonstrate the actual impact the electrical problem caused on the construction schedule. Assuming the delay was due exclusively to the electrical problem, Mr. Lachin believed that delay could have ended on May 30, 2002, when the recommended nylon sling was first used, rather than three weeks later on June 18, 2002. By the earlier date, he said, the cause of the problem and the solution had been identified. And, in his opinion, the “fix”, i.e. the nylon sling, and the “implementation of the fix” were the responsibility of the contractor. If the delay had ended on May 30, 2002, the delay costs submitted by Kostmayer would have been reduced approximately one-fourth to one-third of the amount claimed, Mr. Lachin testified. Additionally, Mr. Lachin noted that the electrical arcing posed a safety hazard to Kostmayer’s workers and, under the construction contract, Kostmayer was responsible for safety at the project site. He explained, too, that work originally associated with the provisions of the contract should not be considered as extra labor costs. In his opinion, the solution to the electrical arcing dilemma entailed modifying the configuration of the contractor’s equipment or, in other words, involved the contractor’s “means and methods” of performing the work, which under the contract was exclusively the responsibility of Kostmayer.

However, the testimony of Peter Burk, the project engineer who was serving as the fair arbiter for the project, suggests otherwise. After the problem arose, Mr. Burk met with Kostmayer to negotiate a change order and to determine the fair amount owed to Kostmayer because of the delay and damage to the crane. Following negotiations, he submitted a change order to the S & WB, reflecting an | ^amount he believed to be fair and equitable to all parties. The two claims within the change order included $10,683.10 for damage to the crane and $97,614.38 incurred as actual delay damages due to the 27-day shut down of operations.

During the negotiations, Mr. Burk requested numerous documents including certified payroll records, which Kostmayer produced. Mr. Burk testified that the documentation provided to him was adequate to support the amount included in the change order. Jesse Gardner, the master mechanic who repaired the crane, testified as to the repair costs, corroborating Mr. Burk’s testimony.

A trial court has great discretion in awarding damages, and its determination should not be disturbed unless clearly wrong. Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), cert. denied., Maritime Overseas Corp. v. Youn, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994). Moreover, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review. Rosell v. ESCO, supra, at 844.

In view of the evidence in the record, we cannot say the trial court was clearly wrong in finding that the S & WB owed Kostmayer the sum of $108,297.48 for additional costs and damage to its crane as a result of the unforeseen condition. In this matter, the trial judge was in a position to observe the witnesses and consider their testimony. She apparently found Mr. Burk’s testimony to be credible in light of his neutral position at the time he negotiated the change order.

114,Assignments of error 1 and 9

Next, the S & WB argues in its first and ninth assignments of error that the trial court erred in finding that Kostmayer acted appropriately to mitigate its damages. The board claims that Kostmayer failed to mitigate its damages because it did not apply an appropriate nylon sling to the crane on May 30, 2002, which could have shortened the delay by three weeks. It claims that a solution to the problem was found on May 30, 2002, which should have allowed Kostmayer to return to work immediately. The S & WB contends that had Kostmayer followed the recommendations of Highline Construction Company to use the nylon sling, further delay would have been unnecessary.

The testimony indicates that Kost-mayer retained the services of Highline Construction Company to find a solution to the electrical arcing. Mr. Kostmayer implemented Highline’s recommendation, using a single nylon sling, but it did not resolve the problem, as the workers continued to experience the electrical shock. Furthermore, Kostmayer did not learn the source of the RFI until June 17th or 18th, when the experts retained by BKI, Mr. Kanter and Mr. Behr, identified the problem. Rudy St. Germain, the chief of engineering at the S & WB, agreed that, for safety reasons, it was critical to identify the source of the electrical arcing before the work could resume at the site. Once the source of the problem was identified and the solution to use multiple nylon slings instead of one was determined Kost-mayer resumed work on the project the next day.

The Louisiana Supreme Court has held that a plaintiff only has a duty to take reasonable steps to mitigate damages. Aisole v. Dean, 574 So.2d 1248 (La.1991). Given, the overwhelming evidence showing RFI was extremely rare, we find Kostmayer made every reasonable effort to find a solution to .the hazard, including 1^retaining the services of several experts. Thus, we find no error in the trial court’s conclusion that Kostmayer took reasonable steps to mitigate its damages.

Assignment of error 8

Finally, in the eighth assignment of error, the S & WB argues that the trial court erred in awarding Kostmayer attorneys fees for withholding the retainage.

All public entities shall promptly pay all obligations arising under public contracts when the obligations become due and payable under the contract. La. R.S. 38:2191(A). Any public entity failing to make any final payments after formal acceptance and within forty-five days following receipt of a clear lien certificate by the public entity shall be liable for reasonable attorneys fees. La. R.S. 38:2191(B). In awarding Kostmayer attorneys fees, the trial court held that the delays set forth in La. R.S. 38:2191 had long since elapsed.

The S & WB argues that it should not be liable for attorney fees for two reasons. First, it claims that it has not yet paid Kostmayer the retainage because there has been no formal acceptance of the project and it has never received a clear lien certificate. Second, the project has not been accepted due to the disputed change order for additional costs.

Although Mr. St. Germain testified that the S & WB has not paid Kostmayer the retainage due to the disputed change order that is the subject of this litigation, that issue has no bearing on whether Kostmayer is owed the full retainage. The S & WB does not contend that the work performed by Kostmayer under the contract was defective or incomplete; nor did it offer evidence of such. Nonetheless, the hfiS & WB arbitrarily withheld its formal acceptance pending the resolution of this dispute. Absent evidence to show that Kostmayer did not complete the work in accord with the contract specifications, we agree with the trial court that Kostmayer was entitled to attorneys fees for the S & WB’s failure to pay the retainage within the delays set forth in the statute.

CONCLUSION

Accordingly, for the reasons set forth above, the judgment of the trial court in favor of Kostmayer Construction, LLC, is affirmed.

AFFIRMED.

      . Kostmayer Construction, LLC, was formerly known as Kostmayer Construction, Inc.

      . Evidence in the record indicates the towers were located approximately two and one-half miles from the job site.

      . Retainage is a portion or percentage of payments due for work completed on a contract that is held back until the entire job is completed satisfactorily.

      . United States Department of Occupational Safety and Health Administration.

      . OSHA, 29 C.F.R. § 1925.550(a)(15), provide in pertinent part as follows:
      Prior to work near transmitter towers where an electrical charge can be induced in the equipment or materials being handled, the transmitter should be de-energized or tests shall be made to determine if electrical charge is induced on the crane. The following precautions shall be taken when necessary to dissipate induced voltages:
      (a) The equipment shall be provided with an electrical ground directly to the upper rotating structure supporting the boom; and

        (b) Ground jumper cables shall be attached to materials being handled by boom equipment when electrical charge is induced while working near energized transmitters. Crews shall be provided with non-conductive poles that have large alligator dips or other similar protection to attach the ground cable to the load, (c) Combustible and flammable materials shall be removed from the immediate area prior to operations.

      . Mr. Burk testified that this figure included costs for laborers on the project site that could not work but who were being paid by Kostmayer, as well as the costs for equipment rental.

      . A clear lien certificate is issued by the recorder of mortgages of the applicable parish to verify that there are no encumbrances of any type, such as a material lien, against a contractor for work done on a construction project. They are common in the construction industry and are generally required in order for the contractor to receive the retainer fees held by the owner of a contract.