source: Caselaw Access Project

author: CARTER, C.J.

license: Public Domain

text:
    Edgar J. SAIZAN, Jr. v. POINTE COUPEE PARISH SCHOOL BOARD.
    No. 2010 CA 0757.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      C. Jerome D’Aquila, New Roads, LA, for Plaintiff-Appellant, Edgar J. Saizan, Jr.
    Robert L. Hammonds, Pamela Wesco-vich Dill, Baton Rouge, LA, for Defendant-Appellee, Pointe Coupee Parish School Board.
    Before CARTER, C.J., GAIDRY AND WELCH, JJ.
   CARTER, C.J.

| ¿This appeal stems from the dismissal by summary judgment of a public school teacher’s action against a school board for extended paid sick leave, as well as damages and medical expenses associated with the denial of additional leave. For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

Edgar J. Saizan, Jr. (“Saizan”) was a tenured teacher employed by the Pointe Coupee Parish School Board (“School Board”). During his employment with the School Board, Saizan accumulated sick leave pursuant to the provisions of LSA-R.S. 17:1201, which he utilized to receive his full rate of compensation after becoming ill during the 2002-2003 school year. On May 5, 2003, Saizan exhausted his accumulated sick leave, including his annual ten-day allowance for that school year. Pursuant to the provisions of LSA-R.S. 17:1202, Saizan requested and the School Board granted, ninety additional days of extended sick leave, beginning on May 6, 2003, during | «which Saizan received sixty-five percent of his regular compensation. In November 2008, Saizan was informed that his extended sick leave would expire on December 12, 2003.

Claiming that he was suffering from a catastrophic and long-term illness, Saizan requested that the School Board grant him an additional period of extended paid sick leave. The School Board informed Saizan that its unwritten policy was to treat all sick leave, catastrophic and otherwise, the same. Therefore, the School Board denied Saizan’s request for additional extended paid sick leave and placed him on leave without pay, effective December 13, 2003 through the end of the 2003-2004 school year. The School Board formally adopted a written sick leave policy on December 18, 2003, reiterating and clarifying that sick leave for employees with catastrophic and long-term illnesses would be treated the same as sick leave for employees suffering from other illnesses. Saizan remained on leave without pay status until he retired on July 28, 2004.

Shortly after his retirement, Saizan filed this lawsuit against the School Board seeking to be placed on leave with pay, presumably for the time period that he had been denied additional extended paid sick leave through the date of his official retirement. Saizan complained in his petition that at the time that he was denied additional paid leave he was suffering Rfrom a catastrophic and long-term illness, and the School Board did not have a policy in effect addressing such illnesses as required by LSA-R.S. 17:1202 E(2)(d)(i). Saizan later supplemented his petition to further allege his entitlement to general damages for mental pain and suffering and loss of earnings, as well as special damages for all of his past and future- medical expenses.

The School Board answered Saizan’s allegations by general denial. On November 22, 2005, the School Board filed an initial motion for summary judgment, supported by numerous affidavits and exhibits. The School Board’s position was that Saizan had been placed on leave without pay only after he had exhausted all accumulated and extended sick leave to which he was entitled under law, citing LSA-R.S. 17:1201 and 17:1202. The School Board also argued that its existing policy on long-term and catastrophic illnesses was to treat such illnesses the same as any other illness for sick leave purposes. The School Board formally confirmed and ratified this policy in a written resolution at a meeting on December 18, 2003. Saizan opposed the School Board’s initial motion for summary judgment, primarily arguing that genuine issues of material fact and law existed regarding whether he suffered from a catastrophic and long-term illness, and whether the School Board satisfied the mandates of LSA-R.S. 17:1202 regarding a specific sick leave policy for catastrophic and long-term illnesses.

After a hearing, the trial court denied the School Board’s initial motion for summary judgment, finding genuine issues of material fact surrounding the nature of Saizan’s illness and opining in dicta that the Legislature intended that school boards provide “unique and specific” | .¡policies regarding catastrophic and long-term illnesses rather than adopt identical policies for all types of illnesses. The School Board applied for supervisory writs to this Court and the Louisiana Supreme Court, but both applications were summarily denied in unpublished writ actions.

On June 30, 2009, the School Board filed a second motion for summary judgment, which is the subject of the instant appeal. In its second motion, the School Board sought dismissal of Saizan’s lawsuit because the facts material to the controlling and determinative legal issues were undisputed, including the nature of Saizan’s illness that the trial court specifically found was contested at the time of the initial motion for summary judgment. Saizan opposed the second motion for summary judgment with the same argument that the School Board could not satisfy the statutory mandate by adopting a sick leave policy for catastrophic and long-term illnesses that simply restated the policy that was applicable to other illnesses. Essentially, the parties relied on the same evidence submitted in support and in opposition to the initial motion for summary judgment.

On September 15, 2009, the trial court issued a judgment granting the School Board’s second motion for summary judgment, and dismissing | (;Saizan’s case with prejudice. Saizan filed a timely motion for new trial based on the law of the case doctrine, citing the trial court’s denial of the School Board’s initial motion for summary judgment. After issuing written reasons, the trial court denied Saizan’s motion for new trial clarifying that the School Board was within the comports of LSA-R.S. 17:1202 E(2)(d)(i), and ruling that there was no prohibition against hearing a second motion for summary judgment on the same issue with a different result. Saizan filed this appeal, challenging the trial court’s grant of summary judgment in favor of the School Board, as well as the denial of his motion for new trial.

LAW AND ANALYSIS

On appeal, summary judgments are reviewed de novo, using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate. Bozarth v. State, LSU Medical Center/Chabert Medical Center, 09-1393 (La.App. 1 Cir. 2/12/10), 35 So.3d 316, 323. The motion should be granted only 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. LSA-C.C.P. art. 966 B; Id.

The burden of proof on a motion for summary judgment is on 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 provide factual evidence sufficient to |7establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. LSA-C.C.P. art. 966 C(2).

A fact is material when its existence or nonexistence may be essential to plaintiffs cause of action under the applicable theory of recovery. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Bozarth, 35 So.3d at 324. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id.

In the renewed motion for summary judgment, as in the original urging of the motion, the School Board “points out” that Saizan will be unable to meet his burden of establishing his right to additional extended paid sick leave pursuant to LSA-R.S. 17:1202 or otherwise. For purposes of the second motion for summary judgment, the School Board does not dispute any material facts regarding Saizan’s illness or the application of the School Board’s extended sick leave policy. The School Board maintains that Saizan contests only conclusions of law surrounding the interpretation of the applicable statutes and how those statutes apply to the undisputed facts. The School Board argues that such a challenge is insufficient to create a genuine issue that would defeat summary judgment.

Saizan argues that the School Board failed to meet its statutory obligation because it failed to adopt a separate policy for catastrophic and long-term illnesses until after he had requested additional extended paid sick leave. Because the facts remain the same as when the trial court denied the first motion for summary judgment, Saizan argues that the “law of the case” adoctrine or res judicata prevents a different conclusion on the School Board’s second motion for summary judgment.

We find no merit in Saizan’s assessment of the discretionary law of the case doctrine. The denial of an initial motion for summary judgment does not bar a second motion for summary judgment. Bozarth, 35 So.3d at 323. The denial of a motion for summary judgment is an interlocutory judgment, which the trial court may change at any time up to final judgment. An interlocutory judgment cannot serve as the basis for a plea of res judicata. Id. Furthermore, the jurisprudence specifically allows a trial 'court to consider a second motion for summary judgment after a first motion for summary judgment on the same issue has been denied. Id. Likewise, the denial of a writ application for supervisory review of an interlocutory judgment does not bar reconsideration of or a different conclusion on, the same question when an appeal is taken from a final judgment. Id.

Thus, our review of the merits of the summary judgment rendered against Saizan requires us to interpret the applicable statutory law to the undisputed facts. Saizan is incorrect in his assertion that the trial court’s prior resolution of this question be afforded great deference upon our review. Appellate review of questions of law is simply whether the lower court was legally correct. See Sanders v. Pilley, 96-0196 (La.App. 1 Cir. 11/8/96), 684 So.2d 460, 463, writ denied, 97-0352 (La.3/21/97), 691 So.2d 90. Questions of law, such as the proper interpretation of a statute, are reviewed by this court under the de novo standard of review. After our 19review, we render judgment on the record, without deference to the legal conclusions of the lower court. Sabine Parish Police Jury v. Comm. of Alcohol & Tobacco Control, 04-1833 (La.4/12/05), 898 So.2d 1244, 1247.

In 1999, the Louisiana Legislature amended LSA-R.S. 17:1202 to replace the provisions for extended sick leave, requiring that teachers be permitted no more than ninety days extended sick leave each six-year period. The amendment also set forth the rate at which teachers on such leave should be paid and the manner in which savings resulting from the change should be utilized.

Interpretation of any statute begins with the language of the statute itself. Richardson v. Lott, 03-0189 (La.App. 1 Cir. 11/7/03), 868 So.2d 64, 72, writ denied, 03-3324 (La.2/13/04), 867 So.2d 707. When the application of the clear and unambiguous language of the statute does not lead to absurd results, the law shall be applied as written, without further interpretation in search of legislative intent. Id. The pertinent part of LSA-R.S. 17:1202, as amended, provides:

A. (1) Every ... school board shall permit each teacher to take up to ninety days of extended sick leave in each six-year period ... for personal illness ... at any time that the teacher has no remaining regular sick leave balance.
E. ... (2)(d)(i) ... the board shall adopt a policy regarding providing for employees suffering from catastrophic and long-term illness.
(ii) The board may ... provide additional compensation or extended leave days in excess of what is required in this Section. (Emphasis added.)

| mOur careful examination of the clear and unambiguous language of the statute leads us to the conclusion that Sai-zan was not entitled to additional extended paid sick leave after he exhausted all of his paid sick leave to which he was entitled by law. The statute requires a school board to adopt a policy addressing sick leave issues for employees suffering from catastrophic and long-term illnesses, but the statute does not require a different leave policy for various types of illnesses. It is undisputed that the School Board in this case had an unwritten policy at the time of Saizan’s illness and application for additional extended sick leave that included all types of illnesses without distinction. It is also undisputed that the School Board formally adopted its policy clarifying that it considered catastrophic and long-term illnesses the same as all other illnesses for purposes of sick leave.

Our interpretation of the statutory requirements matches that of the trial court. Pursuant to the discretionary authority granted the School Board by the statute, the School Board lawfully denied Saizan additional paid sick leave beyond the ninety days of required extended leave. Although the School Board’s formal written adoption of its sick leave policy did not distinguish a different number of days of additional paid sick leave for catastrophic and long-term illnesses, it was not statutorily required to do so. The School Board’s policy was compliant with the law in that it did not exclude employees with such illnesses. Catastrophic and long-term illnesses were particularly identified in the School Board policy and were included Inwith all illnesses under the general sick leave policy. Thus, we find the School Board fully complied with the terms of LSA-R.S. 17:1202 when it denied Saizan’s application for additional extended paid sick leave. Therefore, the trial court correctly granted summary judgment in favor of the School Board. We likewise find no abuse of discretion or other error in the trial court’s denial of Saizan’s motion for new trial.

CONCLUSION

We find that the trial court’s September 15, 2009, grant of summary judgment in favor of the Pointe Coupee Parish School Board was properly rendered, and Edgar J. Saizan, Jr.’s motion for new trial was properly denied. We affirm the trial court in all respects. All costs of this appeal are cast to the proper party plaintiff, Travis Saizan, the independent administrator for Edgar J. Saizan, Jr.’s succession.

AFFIRMED.

      . On January 21, 2009, Travis Saizan, the independent administrator for Saizan’s succession, was substituted as party plaintiff for the now deceased Saizan. However, we will continue to refer to Saizan as the plaintiff in this proceeding.

      . Louisiana Revised Statutes 17:1201 provides in pertinent part:
      A. (1) Every member of the teaching staff employed by any parish ... school board of this state shall be entitled to and shall be allowed a minimum of ten days absence per school year because of personal illness ... without loss of pay. Any portion of such sick leave not used in any year shall be accumulated to the credit of the member of the teaching staff without limitation.
      (2) ... The ... school boards may grant additional sick leave, without loss of pay, or with such reduction of pay as they may establish and fix.

      . Louisiana Revised Statutes 17:1202 provides in pertinent part:
      A. (1) Every parish ... school board shall permit each teacher to take up to ninety days of extended sick leave in each six-year period of employment which may be used for personal illness ... in the manner provided in this Subsection at any time that the teacher has no remaining regular sick leave balance.
      C. ... (2) Any teacher on extended sick leave shall be paid sixty-five percent of the salary paid to him at the time the extended sick leave begins.
      E. ... (2)(d)(i) In addition to the authority provided in R.S. 17:1201(A)(2), the [school] board shall adopt a policy regarding providing for employees suffering from catastrophic and long-term illness.
      (ii) The [school] board may, as part of a collective bargaining agreement, or by its own policy provide additional compensation or extended leave days in excess of what is required in this Section.

      . In its ruling denying a new trial, issued after the School Board filed and was granted a second motion for summary judgment and which is the subject of this appeal, the trial court indicated that its ruling on the Legislature’s intent behind LSA-R.S. 17:1202 E(2)(d)(i) in the School Board’s initial motion for summary judgment was “in the form of dicta.”

      . Saizan v. Pointe Coupee Parish School Board, 2006-1383 (La.App. 1 Cir. 10/18/06)(unpublished); Saizan v. Pointe Coupee Parish School Board, 2006-2738, 948 So.2d 154 (La 1/12/07)(unpublished).

      .Alternatively, the School Board argued that Saizan's damage claims for mental pain and suffering and/or medical expenses should be dismissed for lack of sufficient evidence to establish the elements required to recover damages; however this alternative argument is not at issue in this appeal.

      . The law of the case principle is merely discretionary and will not be applied so as to prevent a higher court from examining the correctness of the ruling of a lower court. See Day v. Campbell-Grosjean Roofing & Sheet Metal Corp., 260 La. 325, 330-331, 256 So.2d 105, 107 (1971).

      . 1999 La. Acts, No. 1341, § 1, effective August 15, 1999. Prior to the amendment, the law did not allow a school board the discretion to deny extended sick leave to a school teacher and discontinue payment of his salary if he had exhausted his accumulated sick leave. See Dagenhardt v. Terrebonne Parish School Bd., 94-1672 (La.2/20/95), 650 So.2d 1161, 1165. However, any prior jurisprudence inconsistent with the 1999 amendment to LSA-R.S. 17:1202 has obviously been legislatively overruled, and is inapplicable to this case.

      . It is undisputed that Saizan exhausted his accumulated sick leave, including his ten-day allowance for the 2002-2003, plus an additional ninety days of extended paid sick leave at sixty-five percent of his salary.

      . A trial court’s discretion in deciding whether to grant a new trial is great and will not be disturbed on appeal absent an abuse of that discretion. McClary v. Schiro, 00-0305 (La.App. 1 Cir. 3/30/01), 801 So.2d 398, 403, writ denied, 01-2126 (La.1 1/2/01), 800 So.2d 878.


author: McClendon, j.

text:
    Meredith Bourg CHAUVIN v. Todd David CHAUVIN. Todd David Chauvin v. Meredith Bourg Chauvin.
    Nos. 2010 CU 1055, 2010 CU 1056.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Philip A. Spence, Houma, LA, for Plain-tiffAppellee, Meredith Bourg Chauvin.
    Jerri G. Smitko, Houma, LA, for Defendant/Appellant, Todd David Chauvin.
    Before WHIPPLE, MCDONALD, and McClendon, jj.
   McClendon, j.

|2In this custody proceeding, a father appeals a judgment granting the domiciliary custody of the minor child to the mother. For the following reasons, we affirm the judgment of the trial court.

FACTS AND PROCEDURAL HISTORY

Meredith Bourg and Todd David Chau-vin were married on May 22, 2004, and their son, Logan, was born on September 2, 2005. Petitions for divorce were filed by both parties in April of 2008, and the matters were consolidated on May 6, 2008. On September 26, 2008, the trial court signed a judgment of divorce, as well as a judgment based on the consent of the parties regarding child custody and other incidental matters. Among the stipulations in the custody judgment was one that the parties would have shared joint custody on a rotating week-to-week basis to coincide with Mr. Chauvin’s employment. Also by consent judgment, signed on March 26, 2009, Mr. Chauvin was granted the exclusive use and possession of the former matrimonial domicile in Bourg, Louisiana.

Thereafter, on June 8, 2009, upon obtaining information that Ms. Bourg had enrolled Logan in two other elementary schools, Mr. Chauvin filed a rule requesting that Logan be enrolled at Bourg Elementary School. Opposing rules for modification of custody followed shortly thereafter. Trial on the three rules was held on August 11, 2009. At the start of the trial, the court advised the parties that each side would have two hours to present their case. At the conclusion of trial, the matter was taken under advisement. Judgment was signed on January 15, 2010, granting the parties the joint, care, custody, and control of their minor child, with Ms. Bourg being designated as the custodial domiciliary parent, subject to the visitation rights of Mr. Chau-vin as established in the Joint Custody Implementation Plan.

|sMr. Chauvin appealed. In his appeal, Mr. Chauvin alleges that the trial court erred in limiting him to two hours to pres-. ent his case on his two rales and to defend against Ms. Bourg’s rale. He also assigned as error the grant of domiciliary custody to Ms. Bourg, because the court made no determination that Ms. Bourg met her burden of proving that there had been a change in circumstances, and because the court did not balance the factors for awarding custody as required by the Civil Code.

DISCUSSION

The best interest of the child is the guiding principle in all custody litigation. LSA-C.C. arts. 131 and 134. Keeping in mind that every child custody case must be viewed in light of its own particular set of facts, the jurisprudence recognizes that the trial court is generally deemed to be in the best position to ascertain the best interest of the child given each unique set of circumstances and because of its superior opportunity to observe the parties and the witnesses who testified at the trial. Babin v. Babin, 02-0396, p. 7 (La.App. 1 Cir. 7/30/03), 854 So.2d 403, 408, writ denied, 03-2460 (La.9/24/03), 854 So.2d 338, cert. denied, 540 U.S. 1182, 124 S.Ct. 1421, 158 L.Ed.2d 86 (2004); State in the Interest of AR, 99-0813, p. 8 (La.App. 1 Cir. 9/24/99), 754 So.2d 1073, 1078. Accordingly, the trial court is vested with a vast amount of discretion in child custody cases, and its determination of custody is entitled to great weight, which will not be reversed on appeal unless an abuse of discretion is clearly shown. Elliott v. Elliott, 05-0181, p. 7 (La.App. 1 Cir. 5/11/05), 916 So.2d 221, 226, writ denied, 05-1547 (La.7/12/05), 905 So.2d 293; State in the Interest of AR, 99-0813 at p. 8, 754 So.2d at 1077-78.

In this case, as in most custody cases, the trial court’s determination was based on factual findings, which are sub-ject to the manifest error standard of review. Specifically, an appellate court cannot set aside a trial court’s findings of fact in the absence of manifest error or unless those findings are clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse those findings even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 844. In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and- (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Stobart v. State, through Dep’t of Transp. and Dev., 617 So.2d 880, 882 (La.1993). Thus, when there are two permissible views of the evidence, the fact finder’s choice between them cannot be manifestly erroneous. Id. at 883.

However, where one or more legal errors by the trial court interdict the fact-finding process, the manifest-error standard is no longer applicable. Evans v. Lungrin, 97-0541, p. 6 (La.2/6/98), 708 So.2d 731, 735. A legal error occurs when a trial court applies incorrect principles of law and such errors are prejudicial. Legal errors are prejudicial when they materially affect the outcome and deprive a party of substantial rights. Pruitt v. Brinker, Inc., 04-0152, p. 4 (La.App. 1 Cir. 2/11/05), 899 So.2d 46, 49, writ denied, 05-1261 (La.12/12/05), 917 So.2d 1084.

In his first assignment of error, Mr. Chauvin argues that he had no knowledge that there would be a limitation imposed upon the presentation of evidence. He asserts that by giving him only two hours to present evidence on |fitwo rules and defend a third, his rights to due process were violated under the Louisiana Constitution.

A court has the power to control its proceedings pursuant to LSA-C.C.P. art. 1681 A, which provides:

The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.

The court’s power under LSA-C.C.P. art. 1631 to control trial proceedings is limited by the phrase “so that justice is done.” Further, the due process clauses of the Louisiana Constitution and the Fourteenth Amendment to the United States Constitution guarantees litigants a right to a fair hearing. However, “due process” does not mean litigants are entitled to an unlimited amount of the court’s time. Goodwin v. Goodwin, 618 So.2d 579, 588 (La.App. 2 Cir.), writ denied, 623 So.2d 1340 (La.1993).

The court in Goodwin adopted the five following non-exclusive factors that should be considered in determining whether the trial court denied a party its due process rights and exceeded the authority granted by statute: (1) before imposing time limitations in a case, the trial judge should be thoroughly familiar, through pretrial proceedings, with the claims of the parties, the proposed testimony and number of witnesses, and the documentary evidence to be presented; (2) if they are used, time limits should be imposed on all parties, before any party presents any evidence, and sufficiently in advance of trial for the litigants to prepare for trial within the limits imposed; (3) the trial judge should inform the parties before the trial begins that reasonable extensions of the time limits will be granted for good cause shown; (4) the trial judge should develop an equitable method of charging time against each litigant’s time limits; and (5) the trial judge should put all of his rulings regarding time limits and the ^reasons for the rulings on the record. Id. at 583-84. Mr. Chauvin argues that because none of the Goodwin guidelines were followed, the trial court committed legal error.

In this matter, at the beginning of trial, the following conversation took place:

The Court: Okay. Let me ask you this, Ms. Smitko, about how many witnesses do you have? And I’m going to ask you the same thing, Mr. Spence. Including your client. And not counting the other side....
Ms. Smitko: Not counting the other side?
The Court: Right. And Mr. Spence, count your client and your witnesses, so I can give ya’ll the game plan here.
Ms Smitko: Possibly eight that I intend calling, but they may be aligned with the other side, but I do have to call them in my case in chief.
The Court: All right.
Mr. Spence: If you like, I’ll call out the names of my witnesses because I’m going to ask for a sequestration order, but I have five.
The Court: Okay. This is the deal, each side is going to be given two hours to put on testimony, including cross-examination. Each side has two hours. Does not count argument, does not count recesses, doesn’t count calling your witnesses. It counts from the time you start questioning. So each side has two hours. I’ll be the timekeeper. Okay. So that means get to the point.
Ms. Smitko: Just a quick question, Judge.
The Court: Sure.
Ms. Smitko: Like if I spend 15 minutes on a witness and he cross-examines for 45 minutes does that—
The Court: That’s his 45.
Ms. Smitko: Oh, okay.
The Court: That’s his 45 minutes.
Ms. Smitko: Just make sure that doesn’t come on mine.
|7The Court: That’s his 45 minutes. Okay?
Mr. Spence: Don’t have to worry about that.
The Court: I’ve done this before. It works. It makes the lawyers get to the point. Two hours is a lot of time. It’s going to take probably— to do four hours it’s probably going to take eight hour[s] to do a four hour, two hours each. Trust me.
Ms. Smitko: Yes, sir.
The Court: Well, maybe not eight hours but six I’m sure, okay. Ms. Smitko, please call your first witness.

Initially, we note that Mr. Chau-vin is basically arguing a denial of due process due to his inability to fully present his evidence. However, Mr. Chauvin did not object to the trial court’s allocation of time. To preserve an evidentiary issue for appellate review, it is essential that the complaining party enter a contemporaneous objection to the evidence or testimony and state the reasons for the objection. See Etcher v. Neumann, 00-2282, p. 13 (La.App. 1 Cir. 12/28/01), 806 So.2d 826, 838, writ denied, 02-0905 (La.5/31/02), 817 So.2d 105. Further, Mr. Chauvin did not ask for more time at the conclusion of the presentation of his case. Nor did he ask to proffer the testimony of any witness who was not called. See McLean v. Hunter, 495 So.2d 1298, 1305 (La.1986). Had a timely proffer been made, this court could then determine whether or not the evidence sought to be introduced was such that prejudice occurred by its exclusion. Goodwin, 618 So.2d at 584. Moreover, nowhere in his appellate brief does Mr. Chauvin allege any prejudice. He makes no contention that he was unable to present all the evidence he wanted to present. Mr. Chauvin simply states that the guidelines were not followed thereby amounting to legal error. Thus, even if the Goodwin guidelines were not completely followed, we are constrained to conclude that Mr. Chauvin’s assignment of error regarding a violation of his due process rights is without merit. See Smith v. Smith, 44,663, 44,664, pp. 30-32 (La.App. 2 Cir. 8/19/09), 16 So.3d 643, 660-61; Goodwin, 618 So.2d at 584-85.

Mr. Chauvin next argues that the trial court committed legal error in awarding domiciliary custody to Ms. Bourg. He contends that she failed to meet her burden of proof in showing that there had been a change in circumstances and that the trial court did not balance the factors for awarding custody as required by LSA-C.C. art. 134.

There is a distinction between the burden of proof needed to change a custody plan ordered pursuant to a considered decree and that needed to change a custody plan ordered pursuant to a non-considered decree (or stipulated judgment). Richard v. Richard, 09-0299, p. 6 (La.App. 1 Cir. 6/12/09), 20 So.3d 1061, 1066. If a prior award of custody, as in this case, has been made by consent decree, the party seeking a change in custody must prove that a change materially affecting the welfare of the child has occurred since the original decree. The proponent for change must also show that the proposed modification of custody is in the best interest of the child. Richard, 09-0299 at pp. 6-7, 20 So.3d at 1066.

The evidence presented to the trial court shows that the parties split in April of 2008 because of an affair by Ms. Bourg. The parties agreed to an alternating seven-day custody arrangement, because of Mr. Chauvin’s offshore employment. Ms. Bourg is employed as a mammography technician in Houma. After Ms. Bourg moved out of the matrimonial domicile, she rented a two-bedroom apartment pending the settlement of the community property. Ms. Bourg has another son from another relationship, who was eleven years old at the time of trial and is autistic. He also lives with his mother on a week on, week off basis. Additionally, Mrs. Bourg’s mother lives with her during the week and |flhelps Ms. Bourg financially. Ms. Bourg’s mother and her other son share one bedroom, and Ms. Bourg and Logan share the other bedroom.

Ms. Bourg testified that her boyfriend, James Hyatt, spends the night on occasion. Ms. Bourg also testified that Mr. Chauvin drinks heavily and curses in front of the children. She stated that after Logan spends a week with his father, it takes the first three days to calm him and get him back into his routine. Ms. Bourg testified that it was in Logan’s best interest that she be granted domiciliary custody. She stated that she has always been the caregiver for Logan, getting him up and dressed and to school. She does his homework with him and takes him to the doctor. Additionally, she stated that she could respond to an emergency situation in five minutes, whereas, because of Mr. Chau-vin’s current employment, he was at least fifty minutes away.

To the contrary, Mr. Chauvin testified that he believed it was in Logan’s best interest that he be named the domiciliary parent and that Logan attend Bourg Elementary. Mr. Chauvin was living with his girlfriend in the former family home, which is the only home Logan had lived in until the parties split. Mr. Chauvin testified that he was no longer working offshore, but recently began working in Harvey. He stated that he was home every evening. Mr. Chauvin testified that when he was working seven and seven, Logan stayed with him when he was inshore and not in daycare. He did not like the daycare, believing that there were too many children and not enough supervision. He also stated that Logan was picking up bad habits at the daycare, including bad language, and the bad language was not from him. Mr. Chauvin testified that he drinks, but that he does not have a drinking problem. He also stated that he believed he could provide a more stable life for Logan than if Logan were with his mother, and he did not believe that Logan was safe with her.

On cross-examination, Mr. Chauvin testified that he leaves for work between 4:30 and 5:30 a.m. On the mornings that he has Logan, his girlfriend takes Logan to his mother’s house. Mr. Chauvin stated that he gets off work between four and five in the afternoon and that it takes about an hour, with |intraffic, to get home. Mr. Chauvin admitted that he is gone from the house from about 4:30 a.m. until six or six thirty in the evening. He did state, however, that his office has plans to move to Houma.

Ms. Bourg’s mother testified that her daughter and Mr. Hyatt have a good relationship. She notices a change in Logan’s behavior when he returns from his father’s house. Logan is very clingy with his mother, but it gets better as the week progresses. During their marriage, Mr. Chauvin was verbally abusive to her daughter and he drank excessively. She stated that Mr. Chauvin curses, but admitted that she had no knowledge of such language being used in front of the children.

Mr. Hyatt testified that he sleeps over at Ms. Bourg’s five to six nights a week. He stated that there is no sex when the children are around. He believes that Ms. Bourg is a good mother. He notices that when Logan returns from his father’s house, he uses profanity for the first two to three days.

Stephanie Martin also testified. She has been Logan’s babysitter since he was about eight months old. Ms. Martin testified that she used to watch Logan every day, including those days when Mr. Chau-vin was inshore. Currently, she takes care of Logan only on the days he is with his mother. Ms. Martin testified that there was a change in Logan’s behavior after his parents split. After being with Mr. Chau-vin for a week, Logan was aggressive with the other children. He was pushy, hit others, and used bad language. Normally by Thursday, using time outs, there was improvement. Then, after a week, it started all over again. Ms. Martin stated that Logan is very affectionate with Ms. Bourg. On cross-examination, she admitted that she considered Ms. Bourg her friend.

Mr. Chauvin argues that the trial court erred because it made no determination that Ms. Bourg had met her burden of proving that there had been a change in circumstances. Although the trial court gave no oral or written reasons for judgment, based on the modification of custody, the trial court had to have concluded that there was a change materially affecting Logan’s welfare since the original decree. Further, based on our review of the record, we find |nthat a material change in circumstances had occurred since the rendition of the stipulated judgment. Mr. Chauvin’s work schedule had changed significantly. His work schedule was such that he was gone from the home from approximately 4:30 a.m. to 6:30 p.m. Thus, there were real questions as to who was watching Logan when he was in the care of his father. Additionally, the evidence showed a change in Logan’s behavior since the rendition of the consent judgment. The evidence indicated that Logan’s behavior was aggressive for several days after being with his father. While Mr. Chauvin blamed the behavior on the daycare, all other testimony linked Logan’s behavior to the time immediately following physical custody with his father.

Having concluded that Ms. Bourg met the first prong of her burden of proof in her request to modify custody, we must next consider whether the modification is in Logan’s best interest. In determining the best interest of the child, LSA-C.C. art. 134 enumerates twelve non-exclusive factors to be considered by the trial court, which include:

(1) The love, affection, and other emotional ties between each party and the child.
(2) The capacity and disposition of each party to give the child love, affection, and spiritual guidance and to continue the education and rearing of the child.
(3) The capacity and disposition of each party to provide the child with food, clothing, medical care, and other material needs.
(4) The length of time the child has lived in a stable, adequate environment, and the desirability of maintaining continuity of that environment.
(5) The permanence, as a family unit, of the existing or proposed custodial home or homes.
(6) The moral fitness of each party, insofar as it affects the welfare of the child.
(7) The mental and physical health of each party.
(8) The home, school, and community history of the child.
(9) The reasonable preference of the child, if the court deems the child to be of sufficient age to express a preference.
|1⅞(10) The willingness and ability of each party to facilitate and encourage a close and continuing relationship between the child and the other party.
(11) The distance between the respective residences of the parties.
(12) The responsibility for the care and rearing of the child previously exercised by each party.

The list of factors set forth in this article is non-exclusive, and the determination as to the weight to be given each factor is left to the discretion of the trial court. LSA-C.C. art. 134, comment (b); Elliott v. Elliott, 10-0755, p. 7 (La.App. 1 Cir. 9/10/10), 49 So.3d 407. The trial court is not bound to make a mechanical evaluation of all of the statutory factors listed in LSA-C.C. art. 134, but should decide each case on its own facts in light of those factors. Moreover, the trial court is not bound to give more weight to one factor over another, and, when determining the best interest of the child, the factors must be weighed and balanced in view of the evidence presented. Harang v. Ponder, 09-2182, p. 11 (La.App. 1 Cir. 3/26/10), 36 So.3d 954, 963, writ denied, 10-0926 (La.5/19/10), 36 So.3d 219.

In this case, Mr. Chauvin seems to be focusing on Ms. Bourg’s moral fitness. However, the trial court determined that both parents were fit and proper persons to have the care, custody and control of Logan, having indicated such in its Joint Custody Implementation Plan. The evidence also indicates that Ms. Bourg has been the primary caregiver for Logan and is in the best position to continue to do so. Her employment is in Houma, whereas Mr. Chauvin’s office is in Harvey. Additionally, there were issues regarding Mr. Chauvin’s use of alcohol and concerns regarding Logan’s behavior after a week spent with his father.

After reviewing the record in its entirety, we cannot conclude that the trial court did not consider the factors for awarding custody. Accordingly, we conclude that the record sufficiently supports the finding that it was in Logan’s best interest that Ms. Bourg be designated the domiciliary parent. Thus, we find |13no abuse of the trial court’s discretion and decline to disturb its modification of the parties’ custody.

CONCLUSION

For the foregoing reasons, the January 15, 2010 judgment of the trial court is affirmed. Costs of this appeal are assessed against Todd David Chauvin.

AFFIRMED.

      . We note that on August 24, 2009, Mr. Chau-vin filed an ex parte motion and order for a devolutive appeal. The order was signed on August 27, 2009. However, the judgment from which Mr. Chauvin appeals was not signed until January 15, 2010. Thereafter, on January 26, 2010, Mr. Chauvin filed a motion for new trial. At the hearing on the motion for new trial, held on March 5, 2010, the trial court noted that Mr. Chauvin previously filed an appeal and the court was without jurisdiction. It continued the hearing without date. This court then issued a rule to show cause why the appeal was not premature, since the appellate record did not appear to include a ruling on the motion for new trial.
      To the extent that Mr. Chauvin’s motion for appeal was premature, we note that any previously existing defect arising from a premature motion for appeal (i.e., one taken before the signing of a final judgment) is cured once the final judgment has been signed. Overmier v. Traylor, 475 So.2d 1094, 1094-95 (La.1985) (per curiam); City of Denham Springs v. Perkins, 08-1937, p. 5 n. 5 (La.App. 1 Cir. 3/27/09), 10 So.3d 311, 317 n. 5, writ denied, 09-0871 (La.5/13/09), 8 So.3d 568.
      It is clear that the trial court was without authority to entertain the motion for new trial on March 5, 2010, because its jurisdiction was divested upon the granting of the order of appeal from the judgment pursuant to LSA-C.C.P. art. 2088, following the signing of the judgment. Accordingly; we conclude that Mr. Chauvin’s motion for new trial was waived or abandoned when, on his motion, the order for appeal was signed on August 27, 2009, and judgment was signed on January 15, 2010. See Johnson v. Johnson, 473 So.2d 112, 114 (La.App. 3 Cir.1985). Thus, this appeal is properly before us.

      . Article 1, § 22 of the Louisiana Constitution provides:
      All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights.

      . This Court, in an unpublished opinion, adopted the five factor analysis utilized by the Goodwin court. See Kinney v. Bourgeois, 06-2384 (La.App. 1 Cir. 9/14/07), 962 So.2d 1234 (table) writ denied, 07-2026 (La.1/7/08), 973 So.2d 730.

      . Further, we question the propriety of the imposition of short time limitations in cases involving important issues such as child custody, child support, and interim spousal support. See Lambert v. Lambert, 06-2399, p. 2 n. 1 (La.App. 1 Cir. 3/23/07), 960 So.2d 921, 923 n. 1.

      . We note that in the plan, the court also made a provision that neither party was to entertain overnight guests of the opposite sex to whom they were not married while the child was in his or her physical custody.


author: PARRO, J. HUGHES, J.,

text:
    STATE of Louisiana, in the Interest of E.F., JR.
    No. 2010 CJ 1185.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 29, 2010.

      Walter P. Reed, District Attorney, Cov-ington, LA, Kathryn Landry, Special Appeals Counsel, Baton Rouge, LA, for State of Louisiana.
    Wayne M. Aufrecht, Covington, LA, for Appellant, E.F., Sr.
    Bryan D. Haggerty, Slidell, LA, for Appellant, J.F.
    Before PARRO, GUIDRY, and HUGHES, JJ.
   PARRO, J.

|2The parents of a minor child adjudicated a child in need of care appeal the judgment of the juvenile court assigning the guardianship of the child to his godparents and closing the case of the State of Louisiana through the Department of Social Services, Office of Community Services (OCS), without further court review. For the reasons that follow, we affirm the judgment of the juvenile court.

FACTUAL AND PROCEDURAL BACKGROUND

EJ, the minor child at issue in this matter, was taken into the custody of OCS at the age of two months pursuant to an oral instanter order of custody after he was treated by physicians at Children’s Hospital in New Orleans with what the physicians deemed to be serious, non-accidental, life-threatening injuries. Specifically, EJ was found to have suffered multiple rib fractures and large bilateral subdural hematomas, which the physicians stated were consistent with inflicted trauma, such as child abuse. Neither the parents, nor any of the extended family members interviewed by OCS, could provide any explanation for the child’s injuries.

Included in the record is the report of Dr. Yameika Head, a forensic pediatrician at Children’s Hospital who interviewed JF and reviewed EJ’s medical records. According to this report, EJ was in normal health prior to December 8, 2008, based on the history provided by JF, the mother of EJ. Prior to going to work that morning, JF bathed EJ, and she apparently noticed that he seemed very quiet. EF then babysat the children1 swhile JF went to work. Later, JF, EF, and EJ went to the mall, and JF noticed that EJ would not eat. She further noticed that EJ’s hands were pulsing, his eyes were looking to the left, and he was jittery. JF apparently called EJ’s doctor’s office, and the doctor told her to take EJ to the emergency department at Children’s Hospital. At that time, EJ was diagnosed with seizures and was given a full seizure work-up, including an MRI, CT scans, an EEG, and various other tests. EJ was then hospitalized until December 13, 2008, when he was released with medication to control the seizures.

Approximately ten days later, JF and her other son noticed that EJ’s head looked bigger than normal. However, no one took EJ to the doctor until several days later on December 27, 2008. On that date, JF was at work while EJ was again being cared for by EF. EF contacted JF at work and told her that he noticed EJ’s pulsing hand movement again. He later told her that EJ was alert, crying, and moving. When JF came home from work, she tried to feed EJ, but he would not eat. She also noticed the pulsing hand movement. JF then brought EJ to Children’s Hospital, where EJ was diagnosed with seizure activity again. Various tests were performed on EJ, including a head CT and a chest x-ray. The CT scan revealed fluid on the brain, so the Neurosurgery Department performed a subdural tap to relieve the pressure. The fluid on EJ’s brain was described in one part of Dr. Head’s report, as well as in the CT scan report dated December 28, 2008, as large bilateral chronic subdural hematomas most consistent with child abuse. The chest x-ray revealed multiple healing rib fractures of the left rib cage most consistent with non-accidental trauma. The fractures were believed to be approximately two to four weeks old.

Also included in the record is a letter signed by Dr. Lori A. McBride, EJ’s treating neurosurgeon, in which she noted that EJ was diagnosed with hematomas after he presented to the emergency room at Children’s Hospital with seizures, an enlarging |4head circumference, and a bulging fontanelle (soft spot). She acknowledged draining EJ’s hematomas several times while he was in the hospital, and she estimated that the blood within them was seven to twenty-one days in age when EJ was admitted. She also asserted that EJ’s injuries were clearly life-threatening and that he had evidence of permanent brain damage as a result of those injuries. Finally, Dr. McBride stated in her letter that the combination of injuries sustained by EJ, i e., the hematomas, combined with the elevated intracranial pressure and the rib fractures, were consistent with non-accidental trauma in her opinion.

After the initial subdural tap was performed to relieve the pressure on EJ’s brain, JF attempted to feed him. However, after he had eaten a little, one of the doctors noticed that EJ’s respirations were decreasing. Therefore, EJ was intubated and placed in the Pediatric Intensive Care Unit.

Dr. Head stated in her report that JF had provided no history of trauma, or any family or social history, that would explain the injuries that EJ had suffered. She also indicated that there was no evidence of a metabolic disorder or any bleeding or coagulation disorders that would explain the injuries. Nevertheless, Dr. Head asserted that EJ had physical findings of head trauma, as demonstrated by the bilateral chronic subdural hematomas, brain contusions, subarachnoid hemorrhages, and scalp edema that had been discovered upon examination. She also noted the skeletal trauma in the form of the multiple rib fractures suffered by EJ, which were palpable upon physical examination. She specifically stated that such fractures are generally suffered as the result of anteri- or-posterior compression (squeezing), a direct blow to the chest, or perhaps a crush injury. Dr. Head further asserted in her report that the seizure activity EJ was experiencing, and that had led to his latest admission to the hospital, was most likely due to the brain trauma he had sustained.

Dr. Head indicated in her report that she had reported the matter to the appropriate authorities, including OCS. Therefore, pursuant to LSA-Ch.C. art. 620(A), an oral instanter order was issued by the juvenile court on January 13, 2009, placing |Bthe child in the custody of the State. The next day, the juvenile court signed a written instanter order after it had received an affidavit from a representative of OCS setting forth the specific facts supporting the need for taking EJ into state custody. The child was placed with his godparents, Reverend Keith Boyd and his wife Kendra, and a continued custody hearing was held on January 22, 2009. At the hearing, the parents simply stipulated that there were reasonable grounds to retain the child in custody without admitting any of the allegations against them. Accordingly, the juvenile court signed a written judgment on February 26, 2009, finding that there were reasonable grounds to believe that EJ was a child in need of care and that continued custody with the State was in his best interest and was necessary for his safety and protection. The juvenile court further found that OCS had made reasonable efforts to prevent or eliminate the need for removal of the child from his parents’ custody because there was a substantial immediate danger that precluded preventive services as an alternative to removal. Finally, the juvenile court found that OCS made reasonable efforts to reunify the child with his family, including searching for a suitable relative placement, to no avail.

On February 17, 2009, the State through the Office of the District Attorney for the Parish of St. Tammany filed a petition alleging that EJ was a child in need of care 16on the following grounds:

The [child] is a victim of abuse and/or neglect perpetrated, aided or tolerated by the parent, caretaker or person who maintains an interpersonal dating or engagement [relationship] with the parent or caretaker, and the [child’s] welfare is endangered if he is left with the parent or caretaker; more particularly as shown on the affidavit in support of instanter order on the [sic] file in these proceedings and made apart [sic] hereof.

The petition was later amended to allege with more specificity what injuries the child had suffered while in the custody of his parents, i.e., bone (rib) fractures and subdural hematoma. In addition, the amended petition alleged that neither parent could account for how the injuries occurred, which placed the child at a risk of harm.

A hearing on the issue of whether EJ would be adjudicated a child in need of care was scheduled for May 5, 2009, after hearings scheduled for previous dates were opened and then recessed. However, after a lengthy pre-trial conference between the juvenile judge, the assistant district attorney, and the attorneys for each parent and the child, the parents again chose to enter a stipulation that the child was in need of care without admitting the allegations of the petition. Accordingly, the juvenile court adjudicated EJ to be a child in need of care, finding that the State had proven by a preponderance of the evidence that one or more of the grounds set forth in LSA-Ch.C. art. 606 existed.

The juvenile court then proceeded to the issue of disposition. According to the _Jjwritten judgment of adjudication and disposition signed May 29, 2009, the court found that the continued custody of the child with OCS was in the child’s best interest, as it was safe, appropriate, and the least restrictive, placement consistent with the circumstances of the case. The court further ordered that the case plan developed by OCS and dated February 16, 2009, was in the best interest of the child and was made a part of the judgment. Pursuant to the case plan, the goal for the child was reunification with his parents, but the child was to remain in the physical custody of the Boyds until reunification was possible. The case plan also allowed the parents to have liberal visitation with EJ, as long as it was supervised by the Boyds. The judgment of adjudication and disposition was not appealed.

The various case plans in place for this family required that the parents maintain employment, that they maintain contact with OCS, that they provide support for their child while he remained in foster care, and that they attend family therapy and parenting classes, as well as various other requirements. It is undisputed that the parents made progress on certain parts of them ease plan and that they were cooperative with OCS in partially complying with the requirements of the case plan. However, the case plan dated June 2009, also provided the following with regard to the specific issues, conditions, or behaviors that needed to be changed or demonstrated in order to keep the child safe:

The parents will need to gain an understanding of the injuries their child sustained. They will need to acknowledge that the injuries were non-accidental in nature and that [EJ] was the victim of physical abuse. They need to be able to verbalize how they are going to be able to protect him in the future from an injury such as he has suffered.

| sIt is this portion of the case plan that is at issue in this matter, because OCS contends that while the parents have made progress with other parts of their case plan, they have not made any progress with this part.

On July 6, 2009, the juvenile court convened a six-month case review hearing pursuant to LSA-Ch.C. art. 692. The parents initially chose not to stipulate to anything at this hearing, as they had at previous hearings. JF testified at the hearing and denied any knowledge of how EJ had been injured. She indicated that she had questioned her mother, grandmother, and sister about whether they had ever accidentally dropped EJ while caring for him; however, she denied that she had ever asked EF if he had caused the injuries, accidentally or otherwise. She was never cross-examined, however, because after a recess and a conference with the juvenile judge in chambers, the parents again decided to stipulate without admission pursuant to LSA-Ch.C. art. 647. EF never testified at this or any other hearing.

In December 2009, OCS applied to the juvenile court for permission to have a subdural to peritoneal shunt inserted to help drain the fluid from EJ’s brain. According to the letter sent to the juvenile court by OCS, the accumulation of fluid in EJ’s brain had not drained in over six months, and Dr. McBride had recommended the insertion of the shunt. At the parents’ request, a second opinion was sought from another doctor; however, that doctor agreed with Dr. McBride, and the juvenile court approved the procedure.

Despite the recommendation of this procedure by two physicians, EF apparently did not see the need for such procedures and tended to minimize his son’s health issues according to at least one of the therapists and the Court Appointed Special Advocate (CASA) volunteer who worked with the family. According to a letter in the record from Dana Hulsey, one of the licensed clinical social workers appointed to work with the family, EF denied that EJ had any lasting injury or that he needed a shunt at all. Ms. Hulsey further noted that EF seemed strongly against further medical treatment for EJ’s injury during her sessions with him. Likewise, Lynn Bordes, the CASA volunteer, noted lnin her report dated December 23, 2009, that both parents tended to minimize the severity of his life-threatening injuries, preferring instead to focus on how well he was doing at the time.

The juvenile court convened a twelvemonth joint case review and permanency plan review hearing on April 6, 2010, at which it also considered a joint motion to modify the judgment of disposition filed by the parents. The motion to modify primarily sought the return of EJ to his parents. However, as an alternative prayer for relief, the parents requested that E J be returned to the custody of JF with EF agreeing to temporarily vacate the family home, subject to his satisfactorily meeting certain guidelines set by the juvenile court. In addition to the motion to modify, at issue before the court was the recommendation by OCS that the permanent plan for EJ should be changed from reunification to a transfer of guardianship from his parents to the Boyds. OCS further requested that its case be closed without further court review.

According to the minute entry from the above hearing, the juvenile court apparently conducted a pre-trial conference and then notified counsel for all parties that they were allowed to file briefs on the matter. It appears that no new evidence or testimony was accepted into the record at this hearing; although the juvenile court’s written reasons for judgment indicate that the parties stipulated at the hearing that the parents had substantially complied with their case plan, they had not provided OCS with an explanation as to how their infant son had received serious, non-accidental, life-threatening injuries. The juvenile court gave the parents and the State the option to submit briefs on the issues within thirty days of the hearing. The parents submitted a joint brief, but the State did not submit a brief.

After reviewing the parents’ brief and the record, the juvenile court issued [ mwritten reasons for judgment, finding that it was clearly in EJ’s best interest to live outside his parents’ home. Therefore, the juvenile court granted guardianship of the child to the Boyds as the most appropriate and least restrictive placement. The juvenile court later signed a judgment in accordance with its written reasons, decreed permanent placement with the Boyds, and closed the OCS case without further review. It is from this judgment that the parents have appealed.

DISCUSSION

In their sole assignment of error on appeal, EF and JF contend that the juvenile court erred in assigning guardianship to the Boyds, when EJ’s injuries were never confirmed to have been caused by the parents.

A court of appeal may not overturn a judgment of a juvenile court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. See Stobart v. State, Through Department of Transportation and Development, 617 So.2d 880, 882 n. 2 (La.1993); see also State, In Interest of GA, 94-2227 (La.App. 1st Cir.7/27/95), 664 So.2d 106, 110. Pursuant to this standard, the two-part test for the appellate review of a factual finding is: 1) whether there is a reasonable factual basis in the record for the finding of the juvenile court; and 2) whether the record further establishes that the finding is not manifestly erroneous. See Mart v. Hill, 505 So.2d 1120, 1127 (La.1987). Thus, if there is no reasonable factual basis in the record for the trier of fact’s finding, no additional inquiry is necessary to conclude there was manifest error. However, if a reasonable factual basis exists, an appellate court may set aside a factual finding only if, after reviewing the record in its entirety, it determines the factual finding was clearly wrong. See Stobart, 617 So.2d at 882; Moss v. State, 07-1686 (La.App. 1st Cir.8/8/08), 993 So.2d 687, 693, writ denied, 08-2166 (La.11/14/08), 996 So.2d 1092. Even though an appellate court may feel its own evaluations and inferences are as reasonable as the fact finder’s, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989).

In ruling on this matter, the juvenile court issued written reasons for judgment in which it provided very detailed findings of fact. Many of the facts upon which the court relied are stated above; however, the court also made the following findings:

The Court acknowledges that the parents have substantially complied with their [case plan]; however, the fact remains that the cause of this child’s serious, life-threatening injuries [is] unknown. In the February 12, 2010 Court Letter, OCS indicated that the parents have complied with all aspects of the [case plan], except for explaining how the child was injured and devising or articulating an explanation as to how they can keep the child safe should he be returned to their care. The [case plan] states, in pertinent part:
The parents will need to gain an understanding of the injuries that their child sustained. They will need to acknowledge that the injuries were non-accidental in nature and [that EJ] was the victim of physical abuse. They need to be able to verbalize how they are going to be able to protect him in the future from an injury such as he has suffered.
Frankly, most of the aspects of the [case plan], such as maintaining employment, providing support, etc., are insignificant. The child came into care for no other reason than these life-threatening injuries. By failing to explain how these injuries were inflicted and failing to provide OCS with a plan to ensure their child’s safety, the parents have not altered or modified in a significant way the behavior which served as a basis for the state’s removal of a child from the home. The Court simply does not believe that the parents in this matter do not know how this infant suffered broken ribs and chronic subdural hemato-mas that require medical intervention to this day. To return the child to these parents, who have failed to address the most important aspect of their [case plan], would not be in the child’s best interest as it would place the child at risk for further abuse.
In addition to the danger of exposing this child to further abuse, the Court is concerned that the child will not receive adequate medical care since the parents have minimized the extent of the child’s injuries to all parties. The physicians at Children’s Hospital have determined the 112injuries are not accidental. Both OCS and CASA have indicated that the parents appear to minimize the seriousness of the child’s life-threatening injuries and focus more on how well the child is doing in spite of them. Moreover, the licensed clinical social worker, Donna Hulsey, who [met] with [EF] and completed a report on February 15, 2010, stated:
[EF] denied that [EJ] needed a shunt or had any lasting injury. He said that his wife and step-son both had large heads. He said that [EJ] met all developmental milestones on time. [EF] seemed strongly against further medical treatment for [EJ’s] injury during my sessions with him.
Ms. Hulsey recommended that the child should not be returned home and should remain in State’s custody since it is not known who injured the baby.
Another licensed clinical social worker named Lisa Tadlock evaluated both parents and submitted reports date[d] May 1, 2009. In her report, Ms. Tadlock stated that due to the severity of the child’s injuries and lack of explanation as to how the injuries occurred, she could not recommend returning the child to his parents at that time. Both CASA and OCS recommend transferring legal guardianship of the child to Mr. and Mrs. Boyd.
In their brief, the parents argue that “both parents have repeatedly demonstrated to the State and this Honorable Court their care and concern for their child by exploring every possible cause of this injury.” Absolutely no evidence of this has been presented to the Court and no further explanation was given in their brief.
The child is only 18 months old at this time and is still- unable to verbally communicate. Considering the threat of further abuse and the strong indication that the [parents] will continue to minimize the child’s medical needs, it is clear the child’s best interests are served by living outside his parents’ home.

For almost a year after EJ was taken into State custody, reunification with his parents was the permanent plan pursuant to his case plan. However, because OCS, CASA, and the various social workers providing services to the family were concerned about the parents’ inability or unwillingness to comply with the specified part of the case plan quoted above, OCS made a determination to change its recommendation of the permanent plan to permanent guardianship with the godparents.

Pursuant to LSA-Ch.C. art. 702(C)(1), in order for reunification to remain as the permanent plan for the child, the parents must be complying with the case plan and | ^making significant measurable progress toward achieving its goals and correcting the conditions requiring the child to be in care. The parents contend that they were complying with them case plan, as was stipulated. However, as noted by the juvenile court, the parents failed to make any progress in complying with the single most important part of their case plan, namely, they failed to provide any explanation for the life-threatening injuries sustained by EJ, and they failed to provide OCS with a plan to ensure EJ’s safety if he were to be returned to them.

The parents rely on State in the Interest of L.L.Z. v. M.Y.S., 620 So.2d 1309, 1317 (La.1993) for the proposition that a reasonable expectation of reformation exists when a parent has cooperated with state officials and has shown improvement, although all of the problems that exist have not been .eliminated. However, more than mere cooperation with agency authorities is required. More importantly, reformation of the parents is demonstrated by a significant, substantial' indication of reformation, such as altering or modifying in a significant way the behavior that served as a basis for the State’s removal of a child from the home. See State in the Interest of EG, 95-0018 (La.App. 1st Cir.6/23/95), 657 So.2d 1094, 1097, writ denied, 95-1865 (La.9/1/95), 658 So.2d 1263; see also State in Interest of S.M., 98-0922 (La.10/20/98), 719 So.2d 445, 450-51. Since in this case, the juvenile court found that EJ was removed from his parents’ home for no other reason than because of the life-threatening injuries he sustained, and it is undisputed that the parents have made no progress in addressing that aspect of their case plan, it is clear there is no evidence that the parents have modified in a significant way the behavior that served as a basis for the State’s removal of the child from the home. Accordingly, there is no evidence of parental reformation in this matter.

The parents further contend that they have been deprived of their constitutional |14right to raise their child by the judgment of the juvenile court. Specifically, the parents rely on Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982), and Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640 (1981), for the proposition that a natural parent’s desire for and right to the companionship, care, custody, and management of his or her children is an interest far more precious than any property right. The parents further contend that if the juvenile court’s judgment is allowed to stand, they will be deprived of their constitutional right to raise their child, and the parent-child relationship between EJ and his parents will be permanently aborted, “without any evidence of harm to [EJ] being presented.”

As noted above, the record is filled with evidence of the harm that was inflicted upon EJ. The medical evidence is overwhelming that EJ suffered inflicted trauma consistent with child abuse, as evidenced by the bilateral subdural hemato-mas, brain contusions, subarachnoid hemorrhages, and broken ribs the doctors discovered during his ' examinations. Moreover, the evidence in the record is that EJ had been in the immediate care of his parents both times he had to be taken to the hospital for treatment. The parents themselves have offered no explanation for the injuries and have failed and refused to provide a plan to provide for EJ’s safety should he be returned to their custody. Furthermore, they have continued to minimize these injuries, despite the overwhelming evidence of their life-threatening nature.

It is true that a parent’s right to the care, custody, and management of children is a fundamental liberty interest warranting great deference and vigilant protection under the law. State in the Interest of Three Minor Children, 558 So.2d 1238, 1243 (La.App. 1st Cir.1990). However, in addition to protecting the parents’ rights, the courts of this state are required to protect the child’s rights to thrive and survive. State, In Interest of GA, 664 So.2d at 114. Louisiana Children’s Code article 702(C) requires that the juvenile court determine the permanent plan that is the most appropriate and in the best interest of the child in accordance with certain priorities of placement. | ^Furthermore, LSA-Ch.C. art. 601, which addresses the purpose of the “Child in Need of Care” provisions, provides, in pertinent part, “[t]he health, safety, and best interest of the child shall be the paramount concern in all proceedings under this Title.”

We also note that despite the parents’ assertions in their brief to this court that their relationship with EJ has been severed by the juvenile court’s ruling, this is not the case. The juvenile court’s ruling did not terminate the parents’ parental rights; rather, it granted the Boyds legal guardianship of EJ. According to the judgment, this disposition shall remain in effect until the child’s eighteenth birthday, or until it is modified by the juvenile court. Therefore, the parents have the right to file a motion to modify the disposition if they so choose, a fact which they acknowledge in their brief to this court. Moreover, the parents retain residual parental rights, including the right of visitation with EJ, pursuant to LSA-Ch.C. art. 116(24), which allow them to continue to maintain certain rights and responsibilities toward EJ.

Given the record, we find that there was a reasonable factual basis to support the juvenile court’s conclusion that EJ’s best interests would be better served by living outside his parents’ home, considering the threat of further abuse and the strong indication that the parents would continue to minimize EJ’s medical needs. We further find, based on our review of the record, that the factual determinations of the juvenile court were not manifestly erroneous.

DECREE

For the reasons set forth above, the judgment of the juvenile court granting the guardianship of EJ to Keith and Kendra Boyd and closing the case of the State of Louisiana through the Department of Social Services, Office of Community Services, without further court review, is affirmed. All costs of this appeal are assessed to the parents, EF and JF.

AFFIRMED.

HUGHES, J. concurs with reasons.

HUGHES, J.,

concurring.

|,I agree with the result reached by the trial court, but I object to a requirement that the parents explain how the injuries occurred. Parenting classes, drug testing, anger management, future safeguards, etc., are all proper elements of a case plan. In my opinion, “confess” is not. The medical evidence is sufficient to justify the result.

      . The Slidell City Court exercises juvenile jurisdiction for its territorial jurisdiction pursuant to LSA-Ch.C. art. 302(4). As a court exercising juvenile jurisdiction, it has exclusive original jurisdiction in conformity with any special rules prescribed by law, over any child alleged to be in need of care and the parents of any such child. LSA-Ch.C. art. 604.

      . The child and his parents are referred to by their initials to preserve their anonymity in this confidential proceeding. The minor child and his father share the same initials. The father goes by EF, Sr., and the minor child was referred to in the record as EF, EF, Jr., or EJ. For clarity, we will refer to the father as EF and the minor child as EJ.

      . At various times in the record, the date of EJ’s first hospitalization is stated as December 10, 2008; however, Dr. Head’s report and the juvenile court’s written reasons for judgment use the date of December 8, 2008. We will use that date for consistency.

      . JF has another young son from another relationship who lives in the house with her, EF, and EJ. EF also has a young daughter from another relationship who sometimes lives in the house with them.

      . According to the Information provided by JF in Dr. Head’s report, if both parents were at work, the maternal grandmother would care for EJ. In testimony JF provided at a hearing in July 2009,’ she indicated that her sister and her grandmother also cared for him when she and EF were unavailable. EJ is not in daycare, however.

      . He was also diagnosed with Respiratory Synctial Virus (RSV).

      . Pursuant to LSA-Ch.C. art. 624, if a child is not released to the care of his parents, a continued custody hearing shall be held by the court within three days after the child’s removal or entry into custody. In this matter, the continued custody hearing was originally scheduled for January 15, 2009; however the parties asked the juvenile court to open the hearing and then recess for a week.

      . See LSA-Ch.C. arts. 626(B) and 603(23).

      . Allegations that a child is in need of care must assert one or more of the enumerated grounds found in LSA-Ch.C. art. 606(A). The petition filed by the district attorney in this matter asserts neglect pursuant to LSA-Ch.C. art. 606(A)(2), but it also asserts an allegation similar to the ground of abuse found in Sub-paragraph (A)(1) of Article 606, which provides:
      The child is the victim of abuse perpetrated, aided, or tolerated by the parent or
      caretaker, by a person who maintains an interpersonal dating or engagement relationship with the parent or caretaker, or by a person living in the same residence with the parent or caretaker as a spouse whether married or not, and his welfare is seriously endangered if he is left within the custody or control of that parent or caretaker.

      .Such a stipulation without admission is permitted pursuant to LSA-Ch.C. art. 647, as long as certain requirements are met. First, a pre-hearing conference must be convened in accordance with LSA-Ch.C. art. 646.1. Such a conference was apparently held between the juvenile judge, the assistant district attorney, and counsel for all other parties just prior to the hearing in this matter. In addition, LSA-Ch.C. art. 647(2) requires that the parents personally appear before the court. The court must fully inform the parents of their rights, as well as the consequences of the stipulation, including their responsibility to comply with the case plan and correct the conditions requiring the child to be in care. LSA-Ch.C. art. 647(3) and (4). Finally, the parents must knowingly and voluntarily consent to the judgment. LSA-Ch.C. art. 647(5). All requirements appear to have been met in this case.

      .The written judgment refers to the case plan as having been created on February 16, 2009; however, the written transcript of the hearing says the case plan was dated February 6, 2009. Furthermore, there is no case plan dated February 16, 2009. Therefore, it appears that the date in die judgment is a typographical error. In any event, a case plan dated June 30, 2010, was approved by the juvenile court on August 10, -2010. Accordingly, the February case plan was superseded by a subsequent case plan.

      . At one point the case plan required EF to attend anger management courses; however, the juvenile court modified that portion of the plan at the six-month case review hearing in July 2009 to require EF to attend therapy to deal with certain issues surrounding abuse he may have suffered as a child.

      . Other case plans had provided variations of the same statement.

      . These hearings may be held simultaneously pursuant to LSA-Ch.C. art. 711.

      . There is no mention of this in the minute entry for this date, nor is there a transcript of this hearing in the record. However, in various other places in the record, as well as in the briefs on appeal it appears that the major disagreement between (he parties is the fact that the parents were unable or unwilling to give an explanation for how the injuries to EJ had occurred, nor were they able to provide any plan for his continued safety if he were returned to their care.

      . If at any point during the child in need of care proceedings the child is removed from his parents' care and control and placed in the custody of the State, the child’s case is required to go through a series of case review and permanency plan review hearings until such time as the child achieves a permanent placement as defined by LSA-Ch.C. art. 603. See LSA-Ch.C. arts. 687 and 701. Pursuant to LSA-Ch.C. art. 603(20)(c), placement with a legal guardian is considered a permanent placement.

      . We note that there is no notice of appeal in the record indicating that the attorney appointed to represent EJ appealed the judgment of the juvenile court. However, this court sent out a notice of abandonment to EJ’s counsel on July 26, 2010, and when no brief was received, the appeal was dismissed, as to EJ only, on August 13, 2010.

      . The jurisprudence discussing reformation has been developed in the context of the approval or refusal to approve the termination of parental rights. However, in State in the Interest of S.M., 719 So.2d at 459 n. 8, the court applied the concept of reformation while reviewing a juvenile court's judgment approving a permanency plan with a goal of reunification with the mother. While the matter currently before this court does not involve the termination of parental rights, it does involve the transfer of custody from the parents to a legal guardian, and therefore, at least involves the restriction of the parents’ rights to raise their child.


author:
DECUIR, Judge.
      THIBODEAUX, Chief Judge,

text:
    Katina Maria GUIDRY v. GLAZER’S DISTRIBUTORS OF LOUISIANA, INC.
    No. 10-218.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 3, 2010.

      Leonard Knapp, Jr., Attorney at Law, Lake Charles, LA, for Plaintiff/Appellant, Katina Maria Guidry.
    Michael S. Mitchell, Fisher & Philips LLP, New Orleans, LA, for Defendant/Ap-pellee, Glazer’s Distributors of Louisiana, Inc.
    Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, OSWALD A. DECUIR, and JAMES T. GENOVESE, Judges.
   DECUIR, Judge.

| patina Maria Guidry appeals the trial court’s award of summary judgment in favor of Glazer’s Distributors of Louisiana, Inc. (Glazer’s), dismissing her action for employment discrimination in violation of La.R.S. 23:332. Guidry, whom Glazer’s terminated after she failed to report for work as scheduled, alleges that Glazer’s terminated her because of her gender. Glazer’s argues that it terminated Guidry after she violated company policy. The trial court granted Glazer’s motion for summary judgment, concluding that Glazer’s set forth a legitimate nondiscriminatory reason for Guidry’s termination and that Guidry failed to offer evidence that Glazer’s treated her disparately. For the following reasons, we affirm the judgment of the trial court.

FACTS

At the time of her termination, Guidry was one of two women employed in the warehouse at Glazer’s. Guidry normally worked the night shift at Glazer’s, beginning at 5:00 p.m. and ending at approximately 8:30 a.m. the next day. The incident leading to Guidry’s termination arose when Guidry learned that a close family friend had died. The day before the friend’s funeral, Guidry asked her supervisor, Kevin Courville, if she could attend the funeral. Courville indicated that they were shorthanded and never gave Guidry express permission to take the night off.

On the morning of the funeral, Guidry called into work and left a message stating that she would not work her evening shift as scheduled. She then attended the funeral. Despite the fact that two of her fellow employees attended the funeral and returned to work, Guidry did not come in to complete her shift after the funeral. She returned to work the following business day. When she returned, Courville consulted with the Human Resource Director, Rusty Harmount, and the Branch Manager, John O’Reilly, before taking action. Glazer’s terminated her. Approximately one year |2prior to Guidry’s termination, Terry Matte overheard Courville commenting that he was not going to hire any more women to work in the warehouse. Steven Breaux and Nanette Leger also reported hearing a similar comment approximately one year after Guidry was terminated.

Guidry filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission and later brought this action. The trial court granted Glazer’s motion for summary judgment, and Guidry appeals.

LAW AND DISCUSSION

Guidry contends that the trial court erred in granting Glazer’s motion for summary judgment. We disagree.

In reviewing a motion for summary judgment, an appellate court “applies the de novo standard of review, ‘using the same criteria that govern the trial court’s consideration of whether summary judgment is appropriate, i.e., whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law.’ ” Gray v. Am. Nat’l Prop. & Cas. Co., 07-1670, p. 6 (La.2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v. Sonny Greer, 06-1827, p. 4 (La.5/22/07), 958 So.2d 634, 638). “The judgment sought shall be rendered forthwith 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 mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B).

A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730. A genuine Sissue is one in which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate. Id. W/hether a fact is material is determined in light of the relevant substantive law. Weingartner v. La. IceGators, 02-1181 (La.App. 3 Cir. 4/17/03), 854 So.2d 898, writ denied, 03-1388 (La.9/13/03), 853 So.2d 645.

Guidry alleges that Glazer’s violated La. R.S. 23:332, which states in relevant part:

A. It shall be unlawful discrimination in employment for an employer to engage in any of the following practices:
(1) Intentionally ... 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 ... sex....
(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 his status as an employee, because of the individual’s ... sex....

To recover, Guidry must prove that her gender played a part in the termination of her employment. She may establish gender discrimination through either direct or circumstantial evidence. See Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir.2004). The nature of the evidence determines the framework to be used in analyzing 14Guidry’s claim. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985).

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) establishes the procedural framework for analyzing motions for summary judgment in cases which rely on circumstantial evidence of intentional discrimination. Under the McDonnell Douglas framework, Guidry must first establish a prima facie case of discrimination. Willis v. Coca Cola Enterprises, Inc., 445 F.3d 413 (5th Cir.2006). To establish a prima facie case, Guidry must show that: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action; and (4) others outside the protected class who were similarly situated were more favorably treated. Ross v. Univ. of Tex. at San Antonio, 139 F.3d 521 (5th Cir.1998). If Guidry establishes a prima facie case of discrimination, a presumption of discrimination arises, and the burden shifts to Glazer’s to produce a legitimate, non-dis-eriminatory reason for the challenged actions. If the employer produces a legitimate, non-discriminatory reason for the termination, the burden then returns to Guidry to raise a genuine issue of material fact that the non-discriminatory reason offered by Glazer’s is merely pretextual. Willis, 445 F.3d at 413.

Guidry may meet the burden of demonstrating pretext and thus avoid summary judgment “if the evidence taken as a whole (1) creates a fact issue as to whether each of [Glazer’s] stated reasons was what actually motivated [Glazer’s] and (2) creates a reasonable inference that [gender] was a determinative factor in the actions of which [Guidry] complains.” Vadie v. Miss. State Univ., 218 F.3d 365, 374 n. 23 (5th Cir.2000).

|fiGuidry contends that she was wrongfully terminated because of her gender. Specifically, she asserts that though she was terminated when she failed to report to work after calling in, other similarly situated male employees received a less harsh method of discipline when they engaged in the same conduct.

Because Guidry has not offered direct evidence of discrimination, her claim is properly analyzed under the McDonnell Douglas framework. As noted above, to establish a prima facie case of discrimination, Guidry must show that: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment decision; and (4) similarly situated male employees were treated more favorably.

Glazer’s does not dispute that Gui-dry satisfies the first three prongs of the prima facie standard. They question, however, whether Guidry offered appropriate “similarly situated” comparators who Glazer’s treated more favorably than she. For this court to compare Guidry to other employees, she must show that she “was similarly situated to those other employees in terms of performance, qualifications, and conduct” and that no other unique facts differentiated their situations. Lester v. Sec’y of Veterans Affairs, 514 F.Supp.2d 866, 874 (W.D.La.2007).

We find that Guidry has not identified similarly situated comparators. Gui-dry cites two full-time warehouse workers, Earl LeBlanc and Casey Howard, whom Leger identified as individuals who missed work without notice and were not terminated. Rather, Glazer’s gave them “occurrences.” These individuals held the same position as Guidry, however, they were not engaged in the same conduct. Guidry did not just miss work without notice. Guidry sought permission to miss work and when that permission was not granted, she missed work anyway. Moreover | c,unlike some of her other coworkers, she missed her entire shift when she could have come in after the funeral services. Her actions are clearly distinguishable from the comparators she offers. Accordingly, we conclude that Guidry failed to establish a prima facie case under the McDonnell Douglas framework.

Even if this were not the case, establishing a prima facie case merely shifts the burden to Glazer’s to offer a legitimate, non-discriminatory reason for Guidry’s termination. Glazer’s submits that Guidry was insubordinate and violated company policy by not reporting to work as scheduled. When an employer claims that an employment decision was based on a legitimate reason, two questions must be posed. First, objectively, is the reason given “legitimate” under Title VII? St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). If the reason is illegitimate on its face, the employer is liable. Id. Second, subjectively, is the employer’s reason merely a pretext for discrimination? Id. If so, then the employer is again liable. Id.

Here, we find that Glazer’s reason for Guidry’s termination is legitimate on its face. Guidry failed to show up for her shift after having failed to obtain permission to do so. This was clearly insubordinate behavior and a violation of company policy. Guidry’s allegations regarding statements by Courville in no way justify her insubordination nor call into question the legitimacy of Glazer’s actions in terminating her.

Summary judgment procedure is favored in Louisiana and is designed to secure the just, speedy, and inexpensive determination of actions. La.Code Civ.P. art. 966(A)(2). Cheramie Services, Inc. v. Shell Deepwater Prod., Inc., 09-1633 (La.4/23/10),7 35 So.3d 1053. Glazer’s motion for summary judgment was properly granted.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of these proceedings are taxed to appellant, Katina Maria Guidry.

AFFIRMED.

THIBODEAUX, Chief Judge, dissents and assigns written reasons.

THIBODEAUX, Chief Judge,

dissenting.

hMs. Guidry clearly offered evidence upon which a trier of fact could conclude that Glazer’s proffered reason for termination was discriminatorily pretextual. Mr. Courville’s statement that he “[was] not going to hire any more women to work in the warehouse because they [were] too much trouble” evinces an intent to discriminate.

The comment Mr. Courville made clearly relates to women, and it was made only two weeks following Ms. Guidry’s termination. Moreover, Mr. Courville had authority over Ms. Guidry’s employment. Finally, the comment’s temporal proximity to Ms. Guidry’s termination lends credence to the assertion that it related to that event.

Earl LeBlanc and Casey Howard, contrary to the majority’s assertion, were engaged in the exact conduct as Ms. Guidry. The majority’s language implies that Ms. Guidry was unequivocally denied permission when, in fact, she received no response to her request to attend her friend’s funeral. Unlike the majority’s misplaced characterization, her action was not tantamount to insubordination. At least, Ms. Guidry attempted to give notice and obtain authorization. LeBlanc and Howard did not bother to even attempt notice. Even assuming Ms. Guidry’s action was |2insubordinate, LeBlanc’s and Howard’s actions are even more egregious examples of insubordination. Yet, they were rewarded with continued employment, while Ms. Guidry suffered the ultimate disciplinary action — termination.

Ms. Guidry also offers evidence that since assuming his position as operations manager, Mr. Courville has not terminated any other employee for not reporting to work. Finally, Ms. Guidry submits that of the approximately ten persons hired by Mr. Courville to work in the warehouse since Ms. Guidry’s termination through the date of his deposition, none of the new hires was a woman.

In construing the facts in a light most favorable to Ms. Guidry, I conclude that she has raised a genuine issue of material fact as to the motive and intent of Glazer’s agent, Kevin Courville. “Summary judgment is seldom appropriate for determinations based on subjective facts, such as motive, intent, good faith, knowledge and malice.” Smith, 639 So.2d at 751 (citing Penalber v. Blount, 550 So.2d 577 (La.1989)). See also, Indep. Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226. Mr. Cour-ville’s motive and intent are factors that should be explored by a trier of fact.

Thus, I conclude that the trial court erred in granting summary judgment in favor of Glazer’s. I would reverse the trial court’s granting of summary judgment and remand this case for further proceedings.

For the foregoing reasons, I dissent.

      . Louisiana Revised Statutes 23:332 is substantially similar to Title VII of the Civil Rights Act of 1964. Thus, the outcome will be the same under the federal and state statutes. LA Day v. Catalyst Tech., Inc., 302 F.3d 474 (5th Cir.2002) (citing Trahan v. Rally’s Hamburgers, Inc., 96-1837 (La.App. 1 Cir. 6/20/97), 696 So.2d 637).