author: Judge Rosemary Ledet

text:
    Cody JOHNSON v. TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INC. d/b/a Regional Transit Authority, Inc., Old Republic Insurance Company, Progressive Paloverde Insurance Company, Barbara Word and Paul Molbert
    NO. 2017-CA-0793
    Court of Appeal of Louisiana, Fourth Circuit.
    FEBRUARY 28, 2018
    Patrick G. Kehoe, Jr., PATRICK G. KEHOE, JR., APLC, 833 Baronne Street, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLANT
    William H. Eckert, Michael J. Tarleton, Daniel G. Collarini, ECKERT & TARLETON, LLC, 201 St. Charles Avenue, Suite 2500, New Orleans, LA 70170, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins )
   Judge Rosemary Ledet

This is a personal injury suit arising out of a collision between a Regional Transit Authority ("RTA") bus and a pick-up truck. The pick-up truck that Paul Molbert was driving collided with the RTA bus. Cody Johnson, a passenger on the RTA bus, commenced this suit against multiple defendants including the RTA; Mr. Molbert; and Mr. Molbert's employer, Anesthesia Consultants of the South, LLC ("ACS").

A jury trial was held in this matter. At the close of Ms. Johnson's evidence, the trial court granted ACS's motion for directed verdict, finding that Mr. Molbert was commuting to work and was thus outside the course and scope of his employment. From the judgment granting the directed verdict, Ms. Johnson appeals. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The relevant facts in this case are undisputed. On the morning of November 20, 2009, at approximately 6:30 a.m., the above-described accident occurred on South Claiborne Avenue, near the intersection of Martin Luther King, Jr., Boulevard, in New Orleans, Louisiana. At the time of the accident, Mr. Molbert was en route to work for ACS at Baptist Hospital on Napoleon Avenue. After exchanging information with the RTA bus driver, Mr. Molbert left the accident scene to report to work. He did not wait for the police to arrive to investigate the accident; however, he gave a statement to the police that night.

Seeking to recover for the personal injuries she sustained as a result of the accident, Ms. Johnson commenced this suit against multiple defendants, including Mr. Molbert's employer, ACS. She averred that, at the time of the accident, Mr. Molbert was acting within the course and scope of his employment. ACS denied liability and filed a motion for summary judgment. Although ACS admitted that Mr. Molbert was one of its employees, it denied that Mr. Molbert was acting within the course and scope of his employment. It contended that, because Mr. Molbert was commuting to work, he was outside the course and scope of his employment.

From the trial court's judgment denying the motion for summary judgment, ACS filed an application for supervisory writ. This court denied ACS's writ application. By a split vote, the Louisiana Supreme Court likewise denied ACS's writ application. Johnson v. Transit Mgmt. of Southeast Louisiana Inc., 13-2752 (La. 2/7/14), 131 So.3d 870. Before trial, ACS re-urged its motion for summary judgment. The trial court again denied the motion for summary judgment.

In May 2017, a jury trial commenced in this case. At trial, Mr. Molbert was the sole witness to testify regarding his employment with ACS and the circumstances surrounding his commute to work on the morning of the accident. He testified that, at the time of the accident, he was employed by ACS as a nurse anesthetist. He had a fixed place of employment; he worked for ACS at Baptist Hospital on Napoleon Avenue.

On the morning of the accident, he was scheduled to be on call starting at 7:00 a.m. One hour before he went on call (at 6:00 a.m.), he received a telephone call at home from his boss, requesting that he come into work to handle a case involving a college student who needed an appendectomy. As a result of the call, Mr. Molbert testified that he left home for work that morning about fifteen minutes earlier than usual.

Before reaching work, he was involved in the above-described accident. Mr. Molbert estimated the time of the accident to be between 6:20 and 6:30 a.m. According to Mr. Molbert, he was approximately five to ten minutes from work, depending on the traffic, when the accident occurred.

Mr. Molbert described being on call as a routine part of his job with ACS. He explained that, when he was on call, the circumstances-how busy his department was-determined his work schedule. Tentatively, he could come into work later than usual (at 9:30 a.m.); however, if his department was very busy, he would come into work, while on call, at his usual start time (then 7:00 a.m.).

Mr. Molbert was an hourly-paid employee of ACS. His pay period, even when he was on call, did not commence until he checked in at work. At the time of the accident, he had not yet checked in at work; hence, he was not being paid. At the time of the accident, Mr. Molbert testified that he considered himself to be on personal, not work, time.

Mr. Molbert owned the vehicle that he was driving at the time of the accident-a pick-up truck. ACS did not pay any portion of the purchase price of the vehicle. Mr. Molbert paid the maintenance, repairs, gas, and all of the other expenses for the vehicle. ACS did not reimburse Mr. Molbert for any expenses of ownership of the vehicle or for any of his transportation or mileage expenses.

Mr. Molbert testified that he decided what route to take to work on the morning of the accident and that he took his regular route. He explained that he took the same route to work five days a week, including when he was on call. His regular job duties did not involve driving, running errands, or making deliveries for ACS. At the time of the accident, he was not making any deliveries or doing anything for ACS; he had not made any stops between leaving his home that morning and the scene of accident.

At the close of Ms. Johnson's evidence, ACS moved for a directed verdict. In support, ACS repeated the argument it raised on its motions for summary judgment-that Mr. Molbert was commuting to work and thus outside the course and scope of his employment. Citing Mclin v. Industrial Specialty Contractors, Inc. , 02-1539 (La. 7/2/03), 851 So.2d 1135 as controlling, the trial court granted the motion for directed verdict. In so doing, the trial court judge orally reasoned as follows:

In McLin , the Supreme Court case cited seven criteria to consider whether or not the person was coming and going ... and that was the test that was annunciated.
One, Molbert was the only one who testified, and his testimony was uncontroverted as to his time of reporting to work, and all the factors concerning his commute to work. He was not felt [sic] on his employee's premises, according to McLin . He was not on a specific mission for his employer. He was going to work to report to his employer. There was no reimbursement for travel expenses and the employer did not provide transportation. There was no implied employer consent under the circumstances while driving to work or while doing work. He wasn't traveling from one work site to another. The accident was not immediately adjacent to the place of employment. And there was no travel risks going to that place of employment. And the operation of the motor vehicle was not duties performed pursuant to his employment, i.e. he was not performing any duties for the employer at the time he was in route to his job.

Thereafter, the trial court entered a written judgment, dated July 6, 2017, granting the directed verdict and dismissing ACS as a defendant with prejudice. This appeal followed.

DISCUSSION

On appeal, Ms. Johnson's sole assignment of error is that the trial court legally erred in granting ACS's motion for directed verdict. In a jury trial, a party may move for directed verdict at the close of an opponent's evidence. La. C.C.P. art. 1810. The motion for directed verdict is a procedural device available in a jury trial to promote judicial economy. Seither v. Winnebago Indus., Inc. , 02-2091, p. 3 (La. App. 4 Cir. 7/2/03), 853 So.2d 37, 39 (citing Reed v. Columbia/HCA Information Sys., Inc. , 00-1884 (La. App. 5 Cir. 4/11/01), 786 So.2d 142 ). Thus, the motion is appropriately made when the evidence overwhelmingly points to one conclusion. Madison v. Ernest N. Morial Convention Ctr.-New Orleans , 00-1929, 01-1127, p. 23 (La. App. 4 Cir. 12/4/02), 834 So.2d 578, 593 (citing Hebert v. BellSouth Telecomms., Inc. , 01-0223 (La. App. 3 Cir. 6/6/01), 787 So.2d 614 ).

A trial court should grant the motion for directed verdict "when, after considering all evidentiary inferences in the light most favorable to the non-moving party, it is clear that the facts and inferences so overwhelmingly favor a verdict for the movant, that reasonable jurors could not have arrived at a contrary conclusion." Everhardt v. Louisiana Dep't of Transp. & Dev. , 07-0981, p. 13 (La. App. 4 Cir. 2/20/08), 978 So.2d 1036, 1047 (citing Thomas v. A.P. Green Indus., Inc. , 05-1064, p. 19 (La. App. 4 Cir. 5/31/06), 933 So.2d 843, 858 ).

Standard of review

In Thomas , supra , this court enunciated the standard of review on appeal of a judgment granting a directed verdict as follows:

The standard of review on appeal of a directed verdict is whether reasonable persons could not reach a contrary verdict under the evidence.
Davis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College , 2003-2219, pp. 7-8 (La. App. 4 Cir. 11/17/04), 887 So.2d 722, 727. The question to be asked by the appellate court is not whether plaintiff proved his case by a preponderance of the evidence, but rather, whether upon reviewing the evidence submitted, the court could conclude that reasonable persons could not have reached a verdict in favor of plaintiffs. Id. The appellate court also must determine if the record supports the granting of a directed verdict, based not on a credibility determination (a factual issue), but on a sufficiency of evidence determination (a question of law). Id. ; Lott v. Lebon , 96-1328, p. 4 (La. App. 4 Cir. 1/15/97), 687 So.2d 612, 616. A directed verdict should be sustained on appeal where the reviewing court would find a jury verdict in favor of the party opposing the motion to be manifestly erroneous had the trial judge allowed the case to go to the jury. Wichser v. Trosclair , 99-1929 (La. App. 4 Cir. 2/28/01), 789 So.2d 24.

05-1064 at pp. 19-20, 933 So.2d at 858. Moreover, the propriety of a directed verdict must be evaluated in light of the applicable substantive law governing the plaintiff's claim. Everhardt , 07-0981 at p. 14, 978 So.2d at 1047 (citing Tanner v.Cooksey , 42,010, p. 6 (La. App. 2 Cir. 4/4/07), 954 So.2d 335, 339 ); Burris v. Wal-Mart Stores, Inc. , 94-0921, p. 5 (La. App. 1 Cir. 3/3/95), 652 So.2d 558, 561.

Vicarious liability

The applicable substantive law governing Ms. Johnson's claim against ACS is vicarious liability, which is codified in La. C.C. art. 2320. "In Louisiana, as elsewhere, an employer (master) is liable for a tort committed by his employee (servant) if, at the time, the servant is acting within the scope of his employment-acting, as our Civil Code Article 2320 phrases it, 'in the exercise of the functions in which ... employed.' " LeBrane v. Lewis , 292 So.2d 216, 217 (La. 1974). An employer is answerable for its employee's negligent acts "when the conduct is so closely connected in time, place, and causation to the employment duties of the employee that it constitutes a risk of harm attributable to the employer's business." Orgeron v. McDonald , 93-1353, p. 4 (La. 7/5/94), 639 So.2d 224, 227 (citing LeBrane , supra ).

"Determining the course and scope of one's employment is intensely fact specific; it must be done on a case-by-case basis." Thomas C. Galligan, Jr., A Primer on the Patterns of Louisiana Workplace Torts , 55 LA. L. REV. 71, 73 (1994). In making the course-and-scope determination, the Louisiana Supreme Court has identified the following, non-exclusive list of relevant factors to be considered:

• the payment of wages by the employer;
• the employer's power of control;• the employee's duty to perform the particular act;
• the time, place, and purpose of the act in relation to service of the employer;
• the relationship between the employee's act and the employer's business;
• the benefits received by the employer from the act; and
• the motivation of the employee for performing the act, and the reasonable expectation of the employer that the employee would perform the act.

Orgeron , 93-1353 at pp. 4-5, 639 So.2d at 227 (citing Reed v. House of Decor, Inc. , 468 So.2d 1159 (La. 1985) ).

In Reed , supra , the Supreme Court further noted the relevant policy considerations, stating:

Determination of the course and scope of employment is largely based on policy. The risks which are generated by an employee's activities while serving his employer's interests are properly allocated to the employer as a cost of engaging in the enterprise. However, when the party (the alleged employer) upon whom vicarious liability is sought to be imposed had only a marginal relationship with the act which generated the risk and did not benefit by it, the purpose of the policy falls, and the responsibility for preventing the risk is solely upon the tortfeasor who created the risk while performing the act.

468 So.2d at 1162.

Given the myriad contexts in which the course and scope of employment issue may arise, the course and scope issue is one that can only be resolved by applying general rules. Orgeron , 93-1353 at p. 4, 639 So.2d at 226. The general rule that applies here, as in Orgeron , is the going-and-coming rule-that is, an employee commuting to work generally is outside the course and scope of employment. Id. Explaining the rationale underlying the going-and-coming rule, the Supreme Court in Orgeron stated:

Because an employee usually does not begin work until he reaches his employer's premises, his going to and coming from work is generally considered outside the course of his employment unless he has a duty to perform en route. Moreover, an employee's place of residence is a personal decision not directly controlled by the employer, and treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination.

93-1353 at p. 5, 639 So.2d at 227.

In both the tort and workers' compensation contexts, the jurisprudence has recognized the applicability of the going-and-coming rule and multiple exceptions to the rule, including the special errand (or special mission) exception (hereinafter referred to as the "special mission exception") relied upon by Ms. Johnson on appeal. In the instant case, it is undisputed that Mr. Molbert had left his house and was en route to his workplace when he was involved in the accident. Unless the facts of this case are outside the ambit of the going-and-coming rule or fall within one of the exceptions to the rule, Mr. Molbert was outside the course and scope of his employment with ACS, precluding a finding of vicarious liability. On appeal, Ms. Johnson makes both of those arguments.

First, she contends that the going-and-coming rule is inapplicable because Mr. Molbert, like the volunteer firefighter in Matlock v. Hankel , 96-1838 (La. App. 4 Cir. 2/11/98), 707 So.2d 1016, was responding to an emergency and thus in the course and scope of employment from the time of his boss' call. Second, she contends that the special mission exception to the rule, adopted in McLin , supra , applies here. We separately address each contention. In so doing, we emphasize, as the Supreme Court held in Orgeron , that the course and scope determination must be made by engaging in a multiple factor analysis. 93-1353 at pp. 4-5, 639 So.2d at 227 (citing Reed , supra ). Thus, there is some overlap in our analysis of the two contentions.

The emergency nature of the travel under Matlock

The issue we addressed in the Matlock case was whether a volunteer firefighter is acting within the course and scope of employment while responding to a fire. In Matlock , Mr. Hankel, a volunteer fireman, received a call at his home from his fire chief to respond to a fire. Driving his personal vehicle, Mr. Hankel rushed from his home to the scene of the fire. When he arrived at the scene, Mr. Hankel struck a pedestrian with his vehicle. The pedestrian sued, among others, the Fort Pike Volunteer Fire Department ("FPV") and the City of New Orleans Fire Department ("NOFD"), contending they both were vicariously liable. Rejecting an attempt to equate Mr. Hankel's response to the fire with an ordinary commute to work, this court reasoned as follows:

[W]e do not believe that the response of a volunteer fireman to a fire is equivalent to an ordinary commute to work. The Supreme Court, in Orgeron, on Behalf of Orgeron v. McDonald , 93-1353pp. 5-8 (La. 7/5/94), 639 So.2d 224, 227-28 [,] has held that the "going and coming rule," under which an employee's travel from home to work and back is not usually considered to be within the course and scope of his employment, is not inflexible when the employee does not work on the employer's premises or have a fixed place of work. In Orgeron , the Supreme Court, based upon the time constraints imposed on an employee to report to a particular (non-employer premises) location to work and the emergency nature of the assignment, held that an employer's automobile accident while he was on his way to work occurred within the course and scope of his employment. While the facts of the present case are very different from those of Orgeron , the present case does include the elements of [i] time constraint on Mr. Hankel's travel and [ii] an emergency situation. Apparently, FPV volunteer firemen were expected to respond to fires directly from their homes (Mr. Hankel had his helmet, fire coat[,] and gloves at home) and it is the nature of the situation that they will respond immediately and expeditiously. We believe that, when they so respond to a fire, they are in the course and scope of their employment with FPV and NOFD.

Matlock , 96-1838 at pp. 4-5, 707 So.2d at 1019.

Ms. Johnson cites Matlock as involving similar facts-employer-motivated travel from home to work in response to an emergency-given that Mr. Molbert "had a small window of time [forty-five minutes] to drive to [his workplace] Baptist Hospital to administer anesthesia to an urgent appendectomy case." The urgency and gravity of Mr. Molbert's travel, Ms. Johnson contends, is apparent from the fact that he left the scene of the accident instead of waiting for the police to arrive to investigate. She thus contends that the policy reasons and factors in Orgeron , as well as other Louisiana Supreme Court cases ( Reed and McLin ), dictate that the risks associated with the urgency of this employer-motivated travel should have led the trial court to deny ACS's motion for directed verdict.

ACS counters that the facts of this case are clearly distinguishable from the facts in Matlock ; unlike here, "[t]he fireman [in Matlock ] was clearly traveling from one worksite to another, i.e. , from his home, to the fire, as volunteer firemen were expected to respond to emergencies from their homes. Essentially, their homes took the place of a fire house." ACS contends that Mr. Molbert was traveling from home to work for a non-emergency situation and that he was not under ACS's control. ACS points out that Ms. Johnson erroneously relies on the fact that Mr. Molbert, like the firefighter in Matlock (Mr. Hansel), was not being paid to argue the lack of payment of wages is not a factor for this court to consider under the circumstances of this case.

In Matlock , this court held that "[t]he fact that Mr. Hankel, as a volunteer fireman, was not paid for his services does not prevent there being a master-servant relationship." 96-1838 at p. 4, 707 So.2d at 1018. As noted, ACS points out that Ms. Johnson cites this finding in Matlock to argue that the lack of payment of wages, under these circumstances, should not be a factor here. This argument, as ACS correctly points out, overlooks that a volunteer, by definition, is never paid. Unlike the volunteer firefighter in Matlock , Mr. Molbert was an hourly-paid employee who was not compensated for his travel time; he was not being paid at the time of the accident only because he had not checked in at his workplace.The fact that Mr. Molbert was not being paid is a factor that the court should consider in deciding the course and scope issue. Indeed, the first Orgeron factor used to determine whether an employee is in the course and scope is "the payment of wages by the employer." 93-1353 at p. 4, 639 So.2d at 227.

The rationale underlying the holding in the Matlock case is that a firefighter is "at work" from the time he begins to respond to the fire. Citing this rationale, courts in several other jurisdictions have declined to apply the going-and-coming rule in the context of a volunteer firefighter responding to a fire. Strickland v. Galloway , 348 S.C. 644, 648, 560 S.E.2d 448, 450 (Ct. App. 2002) (collecting cases including Matlock , supra ; and Estate of Soupene , supra ). "The general reasoning followed by these courts is the volunteer firefighter is not 'going to work' when responding to the call but is 'at work' when responding to the emergency call. Because these volunteers must respond immediately and expeditiously, they are performing the fire department's business when they embark on their response to a fire." 348 S.C. at 648-49, 560 S.E.2d at 450. Unlike a volunteer firefighter's job, a nurse anesthetist's job does not intrinsically involve travel. The underlying rationale of the Matlock case is thus inapposite here.

As noted earlier, in Matlock , we relied upon two elements from Orgeron to find the firefighter was acting in the course and scope of his employment in responding to the fire-[i] the time constraint on the travel; and [ii] an emergency situation. Neither of those elements is present here. Mr. Molbert testified that this situation "wasn't an emergency like I had to scream over there to get, you know, lights and sirens and everything. It just was a situation where I had to get there in a relatively timely manner." He characterized this as an urgency-not an emergency-situation.

Nor were there any time constraints on Mr. Molbert's travel beyond those placed on any commuter who is required to get to work by a particular time. See Guidry v. Chevron U.S.A., Inc. , 461 So.2d 625, 627 (La. App. 1st Cir. 1984) (observing that "[r]equiring an employee to show up for work does not make transportation 'incidental' to the employment contract"). Contrary to Ms. Johnson's suggestion that Mr. Molbert was rushing to get to work, Mr. Molbert indicated that he was engaged in his normal commute to work with the exception that he left home a few minutes earlier than usual. Ms. Johnson's reliance on the fact that Mr. Molbert declined to stay on the scene to wait for the police as evidence that he was rushing to work is misplaced; Mr. Molbert's post-accident actions are not relevant to the question of whether Mr. Molbert was in the course and scope of his employment when the accident occurred.

There are two additional distinctions between the facts in the Matlock case and the facts of this case. One is that the firefighter in Matlock , Mr. Hankel, was on call. Mr. Molbert was not on call either at the time of his boss' call nor at the time of the accident. The other is that, in Matlock , the accident occurred at, or very near, the scene of the fire. As ACS points out, the accident occurred in the one place to which Mr. Hankel was expected to travel-the scene of the fire. In contrast, Mr. Molbert was five to ten minutes from his workplace, depending upon traffic, when the accident occurred. This accident did not occur at, or near, his workplace-the hospital.

For all these reasons, Ms. Johnson's reliance on the Matlock case is misplaced. We thus turn to the issue of whether the special mission exception to the going-and-coming rule applies here.

The special mission exception under McLin

In McLin , a workers' compensation case, the Louisiana Supreme Court first recognized the special mission exception to the going-and-coming rule. Noting that it had not previously had the opportunity to address the exception, the Supreme Court found it significant that the majority of other state supreme courts had applied the exception in some form. McLin , 02-1539 at p. 6, 851 So.2d at 1140-41 (citing 1 Arthur Larson & Lex K. Larson, LARSON'S WORKERS' COMPENSATION LAW § 14.05 (2002) ("Larson ") ). Continuing, the Supreme Court observed that the most oft-cited definition of the special mission exception is the one provided by Larson , which is as follows:

When an employee, having identifiable time and space limits on his employment, makes an off-premises journey which would normally not be covered under the usual going and coming rule, the journey may be brought within the course and scope of employment by the fact that the trouble and time of making the journey, or special inconvenience, hazard, or urgency of making it in the particular circumstances, is itself sufficiently substantial to be viewed as an integral part of the service itself.

McLin , 02-1539 at p. 6, 851 So.2d at 1141 (quoting Larson , supra ).

Recognizing the exception, the Supreme Court held that "if an employee is found to be on a special mission, he will be considered to be within the course of his employment from 'portal-to-portal,' or in other words, from his home to the location of the mission, or alternatively, from the location of the mission to his home." McLin, 02-1539 at pp. 9-10, 851 So.2d at 1143 (citing Larson , supra , § 14.05[1]-14.05[2] ).

The gist of Ms. Johnson's contention is that Mr. Molbert's boss' call, requesting him to come into work earlier than usual, transformed his ordinary commute into a special mission for his employer. ACS counters that the trial court correctly concluded Mr. Molbert was simply commuting from home to work. ACS contends that Mr. Molbert was merely called into work at a different time than normal. In support of its position, ACS cites Rattliff v. Regional Extended Home Care Pers. Servs., L.L. C., 13-1175 (La. App. 3 Cir 3/5/14), 134 So.3d 129, a workers' compensation case.

In deciding whether the special mission exception applies in difficult cases, Larson notes the following three principal variables that the jurisprudence has considered: [i] the relative regularity or unusualness of the particular going-and-coming trip; [ii] the relative onerousness of the trip compared with the service to be performed at the end of the trip; and [iii] the suddenness of the call. Larson , supra , at § 14.05[3].

Applying those principles here, we find that the special mission exception is inapplicable. Mr. Molbert testified that the trip from his home to his workplace on the morning of the accident was the same trip he routinely made, five days a week. When, as here, the trip is "relatively regular, whether every day, ... or at frequent intervals, ... the case begins with a strong presumption that the employee's going and coming trip is expected to be no different from that of any other employee with reasonably regular hours and place of work." Larson , supra , at § 14.05[3].

"The 'onerousness' of the journey depends not only on its length but also on the circumstances under which it is made, i.e., the time of day, whether it is a regular workday, or the conditions of travel." Barnes v. Children's Hosp. , 109 Md.App. 543, 558, 675 A.2d 558, 565 (Md. Ct. Spec. App. 1996). Nothing about this trip was onerous. Indeed, the only difference between this trip and any other trip Mr. Molbert made to work was that he left home about fifteen minutes earlier than usual.

Finally, "[w]hen an employee must drop everything and travel to the workplace, this indicates that the travel itself could be part of the service rendered." Id. The instant case was not one in which Mr. Molbert was required to "drop everything and travel to the workplace"; rather, he testified that he was simply required to get there "in a relatively timely manner." Indeed, Mr. Molbert testified that he left his home only fifteen minutes earlier than usual.

Contrary to Ms. Johnson's contention, the fact that Mr. Molbert's boss called him to come into work earlier than usual-as opposed to commuting to work on his normal work schedule-does not support a finding that he was on a special mission. See Cooper v. Robert Ledford Funeral Home, Inc. , 2013 WL 3947758, at *4 (Tenn. Ct. App. 7/29/13) (observing that "the fact that Mr. Tipton [the employee] was 'called in,' rather than commuting to work on his normal schedule is a distinction without a difference").A similar contention regarding the effect of the employee being "called in" to work was rejected in Shumway v.Geneva Gen. Hosp. , 649 N.Y.S.2d 288, 289, 233 A.D.2d 868 (N.Y. App. Div. 1996).

Affirming a judgment granting summary judgment in favor of the employer-hospital in a tort suit seeking to impose vicarious liability, the court in Shumway reasoned that "[t]he fact that the employee, a nurse, was driving to work after having been called in as a result of a high patient census in her unit of the Hospital does not take this case out of the general [going-and-coming] rule." Id. The court cited the following three factors supporting its decision: "[1] The employee was not being compensated for her 'on-call' status or for the commute, [ii] the work was being performed during the employee's regularly scheduled shift and [iii] the employer had no control over the means by which the employee traveled to work." Id.

The facts in this case are parallel to the facts cited in the Shumway case. Mr. Molbert was not compensated by ACS for either his commute or his on call time. Mr. Molbert testified that if the appendectomy case began at 7:00 a.m., it would have been during his usual work shift hours. ACS had no control over the means by which Mr. Molbert traveled to work.

The Louisiana Supreme Court has noted that "the going and coming rule applies nicely when the employee has a fixed place of work, so that his traveling back and forth between his home and his fixed place of work is almost never in the course of employment." Orgeron , 93-1353 at p. 5, 639 So.2d at 227. Mr. Molbert had a fixed place of work (Baptist Hospital), and he was traveling to that place of work. Since he was merely en route to work, the special mission exception is inapplicable.

Virtually all special mission exception cases "involve an element of unusualness in the trip: in terms of time, destination (job site), or duties to be performed." David Polin, Workers' Compensation: Special Mission Exception to Going-and-Coming Rule , 32 Am.Jur. Proof of Facts 2d 199, 206 (1982) ("Polin "). "The very name of the exception suggests that the injury is compensated because the travel was pursuant to some special work." Comment, The Special Errand Exception , 6 Stan. L.Rev. 383, 390 (1954). "These three factors-[i] unusual time, [ii] unusual destination (place of work), and [iii] unusual work-combine and recombine in the cases. Sometimes all three are present, always at least one of them." Polin , supra.

In this case, neither the destination (place of work) nor the work itself was unusual. Mr. Molbert's destination was the hospital-his routine workplace; the work was his routine job-administering anesthesia to a patient. The unusual time factor, however, requires additional analysis.

Although at the time of the accident Mr. Molbert, technically, was not yet on call (his on call status did not start until 7:00 a.m.), the day of the accident was an on-call day for him. Mr. Molbert explained that, on days when he was on call, his usual time of reporting to work varied, depending upon how busy his department was. The gist of his testimony was that on the days when he was on call, he could sleep in-report to work at 9:30 a.m. instead of his normal 7:00 a.m. report time-unless his department was very busy. On the morning of the accident, Mr. Molbert testified that he received a call from his boss asking him to come in earlier than normal because there was an urgent appendectomy case. The call was simply to come into work at an earlier time because the department was busy that morning. The unusual time factor is thus not met here.

Regardless, even assuming, arguendo , that the unusual time factor is met here, the special mission exception generally is found to be "inapplicable when the only special component is the fact that the employee began work earlier or quit work later than usual." Larson , supra , § 14.05[4]. Hence, for all the above reasons, we conclude that the trial court correctly found the special mission exception inapplicable here.

After reviewing the evidence, in light of the substantive law regarding vicarious liability, we find that reasonable persons could not have reached a contrary result as to Ms. Johnson's vicarious liability claim against ACS. Thus, we find no error in the trial court's grant of ACS's motion for directed verdict.

DECREE

For the forgoing reasons, the trial court's judgment is affirmed.

AFFIRMED

BELSOME, J., DISSENTS WITH REASONS

BELSOME, J., DISSENTS WITH REASONS

I respectfully dissent from the majority opinion. As stated by the majority, "[t]he standard of review on appeal of a directed verdict is whether reasonable persons could not reach a contrary verdict under the evidence." Given this Court's standard of review, I find that the facts presented in this case could have led a reasonable juror to make a contrary finding. Specifically, a reasonable juror could have concluded that the Orgeron factors of time constraint on travel and an emergency situation applied to the facts of this case. I find that the trial court erred in granting a directed verdict on the issue of course and scope of employment. Accordingly, I would grant a new trial.

      Mr. Molbert was employed by ACS as a nurse anesthetist.

      At the close of the jury trial, a judgment was rendered against Mr. Molbert and the other named defendants. The jury awarded damages totaling $1,000,000 and allocated fault as follows: 20% to the RTA bus driver; 80% to Mr. Molbert. In its appellee brief, ACS states that "the Appellant [Ms. Johnson] has settled with and dismissed all claims against all other named Defendants." None of the other named defendants is before us on this appeal.

      In his subsequent testimony during the defendants' case (after ACS was dismissed), Mr. Molbert testified as follows regarding the appendectomy case:
      It was an urgent case. I needed to get there in a timely manner, but not necessarily in an emergent manner as such. I refer to it as an emergency because it bumps any surgery that might be added on, or that's not-that's not-that's like an elective surgery. And you know, I had to be there. I had a 45 minute window, typically 45 minute window to get there.
      As to his decision not to wait for the police to arrive to investigate the accident, Mr. Molbert further testified that "[t]his was 2009, post-Katrina New Orleans, it was like to get a response time, I don't know, my guess it would have been more than an hour. And if the surgeon was there and if the crew was there, it would probably be the better part of valor to go and take care of the patient with the appendix."
      In her appellant brief, Ms. Johnson cites Mr. Molbert's subsequent testimony quoted above. This testimony, however, was taken after the directed verdict was granted. This testimony thus was not part of the evidence the trial court relied upon in making its ruling. Regardless, considering this additional testimony would not change the result. Indeed, the substance of this testimony is not materially different than Mr. Molbert's testimony during Ms. Johnson's case-in-chief, which the trial court considered in granting the directed verdict.

      In McLin , a workers' compensation case, the Supreme Court enumerated the following exceptions to the going-and-coming rule:
      (1) If the accident happened on the employer's premises;
      (2) If the employee was deemed to be on a specific mission for the employer, such as making a trip in the interest of his employer's business or pursuant to his employer's order;
      (3) If the employer had interested himself in the transportation of the employee as an incident to the employment agreement either by contractually providing transportation or reimbursing the employee for his travel expenses;
      (4) If the employee was doing work for his employer under the circumstances where the employer's consent could be fairly implied;
      (5) If the employee was hurt while traveling to and from one work site to another;
      (6) If the employee was injured in an area immediately adjacent to his place of employment and that area contained a distinct travel risk to the employee (the "threshold doctrine"); and
      (7) If the operation of a motor vehicle was the performance of one of the duties of the employment of the employee.
      02-1539 at p. 5, n. 1, 851 So.2d at 1140.

      Directed verdicts are governed by La. C.C.P. art. 1810, which provides as follows:
      A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.

      The parties, in their briefs, cross-cite, almost interchangeably, the jurisprudence on the going-and-coming rule and special mission exception in the workers' compensation and tort contexts. As one commentator has observed, an unresolved issue is the extent to which the "course and scope of employment" standard in the workers' compensation context is the same, or similar to, the "course and scope" standard in the tort context for vicarious liability. Frank L. Maraist & Thomas C. Galligan, Jr., Louisiana Tort Law , § 13.02[1] (2d ed. 2017). Another commentator has cautioned against the cross-citation of the workers' compensation and tort jurisprudence, noting that "the compensation scheme and the tort system exist for different purposes, and it is not a good analytical technique to borrow concepts from one to be used in the other." 13 H. Alston Johnson III, La. Civ. L. Treatise, Workers' Compensation Law and Practice , § 144 (5th ed. 2017).
      Addressing a similar cross-citation issue, the federal district court in Hawkins v. Fowler , 2010 WL 1851072, at *3 (M.D. La. 5/7/10) (unpub. ), observed that the Louisiana Supreme Court has noted that "workers compensation cases are different from tort cases, recognizing that application of the going and coming rule might take on different meanings under each regime." Id. (citing Orgeron , 93-1353 at p. 6, 639 So.2d at 226 ). Nonetheless, the Hawkins court reasoned that there was sufficient similarity in purpose of the going-and-coming rule under the workers' compensation and tort schemes to allow application of the general principles and exceptions to the limited course and scope issue before it; the Hawkins court explained its reasoning as follows:
      Namely, that the purpose behind the going and coming rule is the same in workers' compensation and tort contexts, that is, to eliminate substantial administrative concerns if the course and scope of employment extends to travel to and from work. Compare 13 La. Civ. L. Treatise, Workers' Compensation Law and Practice § 168 (4th ed.) (stating "if we were to admit that the trip to and from employment might be covered, when should we say that trip begins? When the employee leaves his house to begin his trip? When he comes downstairs for breakfast? When he gets up to shave and shower, so that he can come downstairs for breakfast, so that he can leave his house to begin his trip? The administrative problems here are substantial.") with Orgeron , 639 So.2d at 227 (a tort case stating "treating commuting time as part of the determination of course and scope of employment would remove manageable boundaries from the determination").
      2010 WL 1851072, at *3, n. 1. The same is true here. See Glander v. Marshall Hosp. , 2003 WL 649127, at *3 (Cal. Ct. App. 2/28/03) (unpub. ) (observing that "[c]ases decided under the workers' compensation law are helpful but not determinative in deciding cases involving vicarious liability, because the former have a broader statutory test allowing for injuries that 'arise out of' employment" and that "[t]he special errand doctrine, however, rests in both situations on finding a benefit to the employer, thus there is no reason we should interpret it more narrowly for purposes of respondeat superior") (internal citations omitted).
      Nonetheless, we acknowledge our prior holding in Matlock v. Hankel , 96-1838, p. 6 (La. App. 4 Cir. 2/11/98), 707 So.2d 1016, 1019-20, that "[e]ntitlement to worker's compensation benefits is determined by the worker's compensation statutes whereas vicarious liability for the torts of servants is governed by Article 2320 of the Civil Code and the caselaw applying that article." We thus consider the workers' compensation jurisprudence as instructive, not dispositive, in resolving the tort issue before us. In any event, we find, under the circumstances presented here, the result is the same under either regime.

      Mr. Hankel, the firefighter, volunteered for the FPV. The FPV worked for the NOFD, which was in charge of all fires.

      The rationale is aptly explained in the concurring opinion in Halford v. Nowak Const. Co ., as follows:
      Where travel is truly an intrinsic part of the job, the employee has already assumed the duties of employment once he or she heads out for the day's work. Thus, the employee is no longer "on the way to assume the duties of employment"-he or she has already begun the essential tasks of the job. Such an employee is covered by the Workers Compensation Act and is not excluded from coverage by the going-and-coming rule. See Estate of Soupene v. Lignitz , 265 Kan. 217, 222-25, 960 P.2d 205 (1998) (finding that volunteer firefighter had assumed duties related to employment when Hewlett-Packard Company began responding to emergency call and was thus entitled to workers compensation benefits).
      39 Kan.App.2d 935, 942-43, 186 P.3d 206, 212 (Leben, J., concurring).

      In Strickland , the court expressly declined to consider the volunteer firefighter responding to a fire under the special mission exception to the going-and-coming rule. Instead, the court opted to treat this as a situation where the rule was inapposite. 348 S.C. at 648, n. 7, 560 S.E.2d at 449 (observing that "we hold the firefighter to be outside the rule, not an exception to it").

      See Loofbourow v. Texas Employers Ins. Ass'n , 489 S.W.2d 456, 458 (Tex. Civ. App. 1972) (finding a nurse-anesthetist who was on call and involved in an accident en route to the hospital was not in the course and scope; observing that "all of appellant's duties of employment were performable at Hillcrest Hospital").

      Although McLin was a workers' compensation case, the special mission exception also has been recognized in the tort context. As one commentator observed, "if the employee is traveling in the performance of some duty related to the employment, although the employee is en route to or from work, the courts have recognized a 'special errand' or 'special mission' exception to the general rule." Christopher Vaeth, Annotation, Employer's Liability for Negligence of Employee in Driving His or Her Own Automobile , 27 A.L.R.5th 174, § 4[a] (1995) ("Annot. ") (citing); Orgeron , supra ("apparently recognizing exception"); Michaleski v. W.Preferred Cas. Co. , 472 So.2d 18, 21 (La. 1985) ; Castille v. All Am. Ins. Co. , 550 So.2d 334, 337 (La. App. 3d Cir. 1989) ; Pierce v. Ellis , 519 So.2d 251, 253 (La. App. 5th Cir. 1988) ; St. Paul Fire & Marine Ins. Co. v. Roberts , 331 So.2d 529, 538 (La. App. 1st Cir. 1976) ). In Orgeron , the Louisiana Supreme Court did not use the terms "special errand" or "special mission"; instead, the Court used the terms "special order" and "specially ordered trip." Orgeron , 93-1353 at p. 8, 639 So.2d at 228.
      This court has recognized that the Supreme Court, in Orgeron , calls into question the continued viability of "a blanket 'special errand' rule" by its statement that "special orders alone do not necessarily cause a trip to fall within the course and scope of employment." Fasullo v. Finley , 00-2659, p. 8 (La. App. 4 Cir. 2/21/01), 782 So.2d 76, 82 (citing Bertrand v. Bollich , 97-164, p. 7 (La. App. 3 Cir. 6/4/97), 695 So.2d 1384, 1388 ). Indeed, in Orgeron , the Supreme Court noted that "[i]f McDonald [the employee] had been notified to report to Fourchon for a special assignment two or three days before the time of reporting, then the trip to Fourchon from wherever arguably would have been outside the course of his employment." 93-1353 at p. 7, 639 So.2d at 228. In order to bring the employee into the course and scope of employment, the Supreme Court in Orgeron required not only a special order but also other exceptional circumstances. In Matlock , this court applied similar reasoning, noting two Orgeron elements were present that rendered the firefighter's commute to the scene within the course and scope of his employment-[i] time constraint on the travel; and [ii] an emergency situation. As discussed elsewhere in this opinion, neither of those elements is present here.

      In Rattliff , the plaintiff, a home health nurse ("Ms. Rattliff"), was involved in an accident when she was driving her personal vehicle from her home to her employer's elderly client's home. Rejecting Ms. Rattliff's argument that she was on a special mission for her employer, the court reasoned that Ms. Rattliff's employment relationship did not begin until she arrived at the client's home each day. The court further reasoned that Ms. Rattliff was not on a special mission, as she was merely traveling from her home to the client's home. Moreover, the court noted that Ms. Rattliff's own testimony defeated her contention that she was on a special mission.

      Thomas v. A.P. Green Indus., Inc. 05-1064, p.19 (La.App. 4 Cir. 5/31/06), 933 So.2d 843, 858 (citing Davis v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College , 2003-2219, pp. 7-8 (La. App. 4 Cir. 11/17/04), 887 So.2d 722, 727 ).

      Orgeron v. McDonald, 93-1353 (La. 7/5/94), 639 So.2d 224.


source: Caselaw Access Project

license: Public Domain

text:
    Shameka BROWN v. THE BLOOD CENTER
    NO. 2017-CA-0750
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 15, 2018
    Jody F. Jackson, Mary B. Jackson, JACKSON + JACKSON, 201 St. Charles Avenue, Ste. 2500, New Orleans, LA 70170, COUNSEL FOR PLAINTIFF/APPELLANT, SHAMEKA BROWN
    Leslie W. Ehret, Peter E. Sperling, Benjamin M. Castoriano, FRILOT, L.L.C., 1100 Poydras Street, 3700 Energy Centre, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLEE, THE BLOOD CENTER
    (Court composed of Judge Terri F. Love, Judge Joy Cossich Lobrano, Judge Dennis R. Bagneris, Sr., Pro Tempore)
    Judge, Dennis R. Bagneris, Sr., Pro Tempore Plaintiff, Shameka A. Brown, appeals a judgment of the district court granting a motion for summary judgment in favor of defendant, The Blood Center (TBC), and dismissing all claims asserted by Ms. Brown against TBC. For reasons that follow, we affirm.
    PROCEDURAL HISTORY
    On July 22, 2015, Shameka Brown filed a lawsuit seeking damages for unlawful termination from her job as a supervisor of a mobile blood center operated by defendant, TBC. Ms. Brown makes claims for damages pursuant to the Louisiana Employment Discrimination Law embodied in La. R.S. 23:301 et seq. , and the Louisiana Pregnancy Discrimination Act set forth in La. R.S. 23:341 et seq. TBC answered the petition and asserted several affirmative defenses including the inability of plaintiff to establish a prima facie case of discrimination under either the Louisiana Employment Discrimination Act or the Louisiana Pregnancy Discrimination Act.
    In the petition Ms. Brown asserts that on August 9, 2014, she became ill at work due to a difficult pregnancy and vomited and urinated on herself. The petition alleges that, because of this incident, she was terminated for abandonment of her job before her next shift despite the fact that a medical emergency required her to leave work temporarily to shower and change her clothes.
    The parties conducted discovery, after which TBC filed a motion for summary judgment on September 23, 2016. The trial court denied that motion, but allowed TBC to re-urge the motion after the taking of a deposition of a TBC representative regarding the work rule allegedly violated by Ms. Brown.
    On February 8, 2017, TBC filed a second motion for summary judgment. After a hearing on the motion, the trial court rendered judgment on May 4, 2017, granting the summary judgment and dismissing all of Ms. Brown's claims against TBC with prejudice. Ms. Brown filed a timely appeal from that judgment.
    FACTS
    Shameka Brown is a whole blood apheresis technician who held the title of mobile supervisor with TBC since 2010. On August 9, 2014, Ms. Brown was the supervisor on duty at the Slidell blood donation center. At that time she was about seven months pregnant with her first child. Due to the difficult pregnancy, Ms. Brown suddenly became ill with nausea and dizziness, causing her to vomit and urinate on herself. Ms. Brown left the blood center and went home to shower and change. She called her supervisor about two hours later to explain what happened and why she left her job without permission. After that conversation, Ms. Brown returned to work and completed the remainder of her shift.
    A few days later Ms. Brown was terminated for abandoning her assigned duty as the scheduled supervisor without appropriate notification in violation of company policy. This policy is incorporated in the company manual introduced into the record. The manual specifically states that employment at TBC is at-will and that leaving a work station without permission while on duty is cause for immediate dismissal.
    In her deposition, Ms. Brown admitted she left her post without notifying her supervisor. She also admitted she knew that behavior was grounds for immediate termination. Ms. Brown testified that she was embarrassed by the incident and could not continue working in her soiled clothing. Ms. Brown told a co-worker she was leaving, but did not notify her immediate supervisor about the incident until about two hours after she left her job. In the interim, the TBC facility was without supervision.
    The report supporting the decision to terminate Ms. Brown's employment shows that Jerry Himel, the marketing manager, went to the Slidell donor center at about 2:30 p.m. He found two fire trucks outside and five donors waiting to give blood. The "bleeding area" was empty. When Mr. Himel questioned staff, he learned that the supervisor, Shemeka Brown, left about 1:00 p.m. due to an illness. Mr. Himel notified Antonio White, Ms. Brown's immediate supervisor, of the problem. It was about this time that Ms. Brown called Mr. White to tell him she left her post. After speaking with Mr. White, Ms. Brown returned to her job at about 3:00 p.m. Ms. Brown did not dispute any of these facts; although she did state that she told a co-worker she was leaving, but not her supervisor.
    Antonio White, Ms. Brown's immediate supervisor, testified that he learned of her absence when he got a phone call from another employee who told him the blood center was busy and there was no supervisor on duty. Mr. White later received a call from Ms. Brown, who told him she left her post because she wasn't feeling well. She also stated she knew the blood center was busy, but she could not return because she was not wearing her uniform. At that time, Ms. Brown did not provide any details of her illness.
    DISCUSSION
    "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." A motion for summary judgment should be granted when there is no genuine issue of fact remaining to be decided for all or part of the relief sought by a litigant. In determining whether summary judgment is appropriate, appellate courts review the evidence de novo using the same standard applicable to the trial court. This standard of review requires this Court to consider evidence presented in the record, and to make an independent determination that there is no genuine issue of material fact, and that the mover is entitled to judgment as a matter of law. Generally, the burden of proof rests with the mover. However, "if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover'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 the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense."
    Claimant makes two claims in her action against TBC for wrongful termination from her employment. She asserts she was discriminated against because of a disability and/or a pregnancy-related condition.
    Our Louisiana law follows the Americans with Disabilities Act, set forth in 42 USC § 12101, et seq. Accordingly, we are guided by federal jurisprudence interpreting discrimination cases and our review of Ms. Brown's claims will follow the analysis set forth under federal law. The requirements for a discrimination claim were articulated in McDonnell Douglas Corp. v. Green . Under the McDonnell Douglas test, a plaintiff is required to show that: (1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated.
    La. R.S. 23:323A provides that, "(n)o otherwise qualified person with a disability shall, on the basis of a disability, be subjected to discrimination in employment." "To defeat a motion for summary judgment against an employment disability claim, the claimant must establish a prima facie case that: (1) he has a disability, as defined by the statute, (2) he is qualified for the job, and (3) an adverse employment decision was made solely because of the disability." Thus, our first inquiry is whether Ms. Brown meets the statutory definition of "disabled."
    An 'otherwise qualified disabled person' is defined "a disabled person who, with reasonable accommodation, can perform the essential functions of the employment position that such person holds or desires." A disabled person "means any person who has a physical or mental impairment which substantially limits one or more of the major life activities ..." " 'Major life activities' means functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working."
    Claimant's only assertion in support of her disability claim is that she was experiencing a difficult pregnancy and that she was unable to stay at work on the day she was terminated due to a pregnancy-related illness. While that fact is not disputed, this assertion does not establish the threshold requirement of a prima facie case under the disability act in that it does not show the claimant had a disability as defined in the relevant statute.
    Ms. Brown seeks to incorporate the language of La. R.S. 23:341(B)(1) into the definition of disability contained in La. R.S. 23:323. The text of La. R.S. 23:341(B)(1) provides: "for purposes of this Part." Ms. Brown's attempt to expand the definition of disability fails because the definition is contained in La. R.S. 23:323 outside the "Part" for the purposes of La. R.S. 23:341(B)(1).
    Additionally, even if she were considered disabled, Ms. Brown failed to meet her burden of establishing a prima facie case that "an adverse employment decision was made solely because of the disability." Thomas v. Louisiana Casino Cruises, Inc. , 03-1937, p. 3 (La. App. 1 Cir. 6/25/04), 886 So.2d 468, 470. Once TBC demonstrated the "absence of factual support for" Ms. Brown's disability discrimination claim pursuant to La. R.S. 23:323, the burden shifted to Ms. Brown "to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law." La. C.C.P. art 966(D)(1).
    Ms. Brown testified that other workers who left work without notifying their supervisor were not terminated, but she was, as a pregnant employee. However, she produced no evidence for corroboration other than her self-serving testimony. While she named a specific employee that she believed was treated differently, she did not attach an affidavit or deposition testimony of said employee. Thus, her assertion was not supported by any corroborating evidence and does not create a genuine issue of material fact. See Schwarzenberger v. Louisiana State Univ. Sciences Ctr. New Orleans , 17-0024, p. 14 (La. App. 4 Cir. 8/24/17), 226 So. 3d 1200, 1209. Therefore, we find an essential element of Ms. Brown's claim, that she is an individual protected under La. R.S. 23:323, lacks any factual support.
    Ms. Brown has also made the claim that she was wrongfully terminated from her employment because of her pregnancy. This cause of action arises under La. R.S. 23:342, which provides in pertinent part that:
    It shall be an unlawful employment practice unless based upon a bona fide occupational qualification:
    (1) For any employer, because of the pregnancy, childbirth, or related medical condition of any female employee, to refuse to promote her, or to refuse to select her for a training program leading to promotion, provided she is able to complete the training program at least three months prior to the anticipated date of departure for her pregnancy leave, or to discharge her from employment or from a training program leading to promotion, or to discriminate against her in compensation or in terms, conditions, or privileges of employment.
    In the trial court, TBC argued successfully that claimant could not meet the final requirement of the McDonnell Douglas test for discrimination, in that she could not show others similarly situated were more favorably treated. Additionally, TBC argued that Ms. Brown was terminated for a legitimate, non-discriminatory reason. Simply put, TBC asserts claimant was fired because she left her job without notifying her immediate superior, not because she was pregnant.
    The trial court was persuaded by this argument and determined that summary judgment should be granted. On de novo review of the record, we arrive at the same conclusion. TBC has shown, and claimant does not dispute, that the reason for the termination of employment was a violation of a clearly defined company policy. She was not fired because she suffered a pregnancy-related illness that caused her to leave her job, or because she is disabled. Her employment was terminated because she did not notify her immediate supervisor that an illness required her to leave her duty assignment until two hours after she left. This failure to notify a supervisor before leaving her work station is listed in the employment manual as grounds for immediate dismissal. Ms. Brown was aware of this policy and that her violation of the policy subjected her to termination from her employment.
    Additionally, we note that there is no evidence to show that others similarly situated were treated differently. In her deposition, Ms. Brown confirmed that she was unaware of any instance in which a supervisor left a blood center unattended without a supervisor on duty.
    For the foregoing reasons, we find no merit in Appellant's assignments of error and we affirm the trial court's judgment granting summary judgment in favor of The Blood Center.
    AFFIRMED

      La. C.C.P. art. 966 A(3).

      La. C.C.P. art. 966.

      Samaha v. Rau , 2007-1726 (La. 2/26/08), 977 So.2d 880, 882.

      Marigny v. Allstate Ins. Co. , 95-0952 (La. App. 4 Cir. 1/31/96), 667 So.2d 1229, 1231, writ denied , 96-0693 (La. 4/26/96), 672 So.2d 910.

      La. C.C.P. art. 966 D(1).

      Thomas v. Louisiana Casino Cruises, Inc. , 2003-1937, p. 3 (La. App. 1 Cir. 6/25/04), 886 So.2d 468, 470, writ denied , 2004-1904 (La. 10/29/04), 885 So.2d 598.

      Id. Wrongful termination because of pregnancy is also prohibited by Title VII of the Civil Rights Act of 1964.

      411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

      McDonnell Douglas Corp. v. Green , supra.

      Thomas v. Louisiana Casino Cruises, Inc. , supra , 886 So.2d at 470, (citing Hook v. Georgia-Gulf Corporation, 99-2791, p. 8 (La. App. 1 Cir. 1/12/01), 788 So.2d 47, 53, writ denied , 01-1098 (La. 6/1/01), 793 So.2d 200.)

      Hook v. Georgia-Gulf Corporation, 99-2791, p. 8 (La. App. 1 Cir. 1/12/01), 788 So.2d 47, 53, writ denied , 01-1098 (La. 6/1/01), 793 So.2d 200.

      La. R.S. 23:322(8).

      La. R.S. 23:322(3).

      La. R.S. 23:322(7).

   LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS

LOBRANO, J., CONCURS IN PART, DISSENTS IN PART, AND ASSIGNS REASONS.

I respectfully concur in part and dissent in part from the majority opinion. First, I concur in the part of the majority opinion affirming the district court's grant of summary judgment in favor of appellee, The Blood Center ("TBC"), and against appellant, Shameka Brown ("Ms. Brown"), as to Ms. Brown's disability discrimination claim. I dissent, however, from the part of the majority opinion affirming the district court's grant of summary judgment in favor of TBC as to Ms. Brown's pregnancy discrimination claim under La. R.S. 23:342. I would reverse that portion of the district court's judgment because genuine issues of material fact remain as to whether TBC provided more favorable treatment to other employees whose situations were similar in nature to Ms. Brown's emergency and whether disparate treatment occurred under the relevant TBC policies.

Under La. C.C.P. art. 966(A)(3), a motion for summary judgment shall only be granted when there is no genuine issue of material fact remaining and the mover is entitled to judgment as a matter of law. "Facts are material if they potentially insure or preclude recovery, affect a litigant's ultimate success, or determine the outcome of the legal dispute." Wood v. Lindsey , 2014-0907, p. 5 (La. App. 4 Cir. 1/28/15), 158 So.3d 939, 942. Although the burden of proof on summary judgment generally rests with the mover, "if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim...but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim...." La. C.C.P. art. 966(D)(1). Depositions may be filed in support of or in opposition to motions for summary judgment. La. C.C.P. art. 966 (A)(4) (stating, "[t]he only documents that may be filed in support of or in opposition to the motion are ...pleadings...."). Moreover, a litigant's testimony, although self-serving, may be sufficient to create a genuine issue of material fact such that the movant is not entitled to summary judgment as a matter of law. Weddborn v. Doe , 2015-1088, p. 4 (La. App. 4 Cir. 5/4/16), 194 So.3d 80, 84 (stating "[w]hile we acknowledge that those affidavits are self-serving, we find that they are sufficient to create an issue of material fact....").

The record before this Court evidences that genuine issues of material fact remain as to Ms. Brown's pregnancy discrimination claim. Specifically, genuine issues of material fact remain as to whether other employees were treated differently and disparate treatment occurred under TBC's policies. As quoted in the majority opinion, the policy TBC alleges that Ms. Brown violated states:

ABSENTEEISM AND TARDINESS... Except where not practical under FMLA, employees must call their manager at least one hour before their scheduled shift if they are not going to report to work or if they must leave before the end of their scheduled shift. If the manager is unavailable at the time of their call, they must contact their department director or the individual who is on call in their department. Failure to report your absence before your shift begins or leaving work without authorization are grounds for immediate termination.

TBC also requires that employees maintain clean uniforms which are appropriate for the workplace or face immediate termination. See fn. 4, infra .

Ms. Brown brings her pregnancy discrimination claim under La. R.S. 23:342. Louisiana courts, for guidance in these claims, look to the framework set forth in federal cases for discrimination under Title VII of the Civil Rights Act of 1964. See, e.g., Delaney v. City of Alexandria, 2001-1076, p. 3, fn. 3 (La. 11/28/01), 800 So.2d 806, 807 (finding it appropriate to look to federal jurisprudence for guidance in discrimination claims where the applicable Louisiana statute is very similar); Ott v. Families Helping Families of Greater New Orleans, 2005-1324, p. 5 (La. App. 4 Cir. 8/16/06), 940 So.2d 1, 5 (finding that, due to the similarity of federal statutes to Louisiana's anti-discrimination laws, Louisiana courts routinely look to federal jurisprudence for guidance in discrimination cases); Suire v. LCS Corr. Servs., Inc., 2005-1332, p. 3 (La. App. 3 Cir. 5/3/06), 930 So.2d 221, 224 (finding that a pregnancy discrimination claim under La. R.S. 23:342 should be reviewed "following the analysis set forth in federal cases for discrimination under Title VII").

As noted by the court in Suire , to make a successful pregnancy discrimination claim, Ms. Brown first must make a prima facie showing of discrimination by establishing the following factors: "(1) she was a member of a protected class, (2) she was qualified for the position she lost, (3) she suffered an adverse employment action, and (4) that others similarly situated were more favorably treated." 2005-1332 at p. 3, 930 So.2d at 224. This is the first step of the burden-shifting test established by United States Supreme Court case McDonnell Douglas Corp. v. Green . 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). After an employee makes such a showing, the burden shifts to the employer to state a legitimate, non-discriminatory reason for the adverse employment action. Id. If the employer successfully does so, the burden shifts back to the employee to show that the employer's stated reason for the adverse employment action was a pretext or discriminatory in its application. Id. at 807, 93 S.Ct. 1817. McDonnell Douglas addressed racial discrimination under Title VII. However, the test it employs has since been applied to other types of discrimination, both by the federal courts, see, e.g., Fairchild v. All Am. Check Cashing, Inc., 815 F.3d 959, 966 (5th Cir. 2016) (applying the McDonnell Douglas test in a pregnancy discrimination case brought under Title VII as modified by the federal Pregnancy Discrimination Act) and by Louisiana courts analyzing Louisiana anti-discrimination law. See, e.g., Motton v. Lockheed Martin Corp. , 2003-0962, p. 7 (La. App. 4 Cir. 3/2/05), 900 So.2d 901, 909 (applying the McDonnell Douglas test in a sex discrimination case).

The fourth factor of the prima facia showing, the "same-treatment" analysis, is echoed in La. R.S. 23:342(2)(a), which provides that with respect to any "female employee affected by pregnancy, childbirth, or related medical conditions", an employer must provide such pregnant employee with "the same privileges that the employer grants to other persons not so affected who are similar in their ability or inability to work." The "same treatment" analysis often requires lower courts to make credibility determinations as to whether an employer provided more favorable treatment to other employees "whose situation cannot reasonably be distinguished" from the employee's situation that resulted in termination of employment. Young v. United Parcel Serv., Inc. , --- U.S ----, 135 S.Ct. 1338, 1355, 191 L.Ed.2d 279 (2015) (finding a genuine dispute of material fact where the evidence introduced by the employee created a question as to whether the employer "provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from [the employee's situation]"). Pregnancy discrimination laws do not provide pregnant women with favorable treatment; however, these laws were enacted to ensure that pregnant women receive equal and same treatment in the workplace. Thus, the "same treatment" analysis, which usually involves conflicting testimony making summary judgment improper, is crucial to a pregnancy discrimination claim.

Although the majority finds that "there is no evidence to show that others similarly situated were treated differently," Ms. Brown testified in her deposition that other employees were not terminated when they failed to notify supervisors prior to leaving work. Ms. Brown specifically identified at least one employee who was not terminated after he failed to notify a supervisor when he missed work. TBC's argues that the employee Ms. Brown identified is not similarly situated. However, this inquiry is a factual determination that is improper for summary judgment. See, e.g., id. A factual determination as to the nature of Ms. Brown's emergency medical situation at work is also necessary to determine whether TBC treated Ms. Brown the same as other similarly situated employees. Given the evidence presented by Ms. Brown and the nature of her claim, the "same-treatment" analysis requires the district court to make credibility determinations as to whether TBC provided more favorable treatment to other employees in reasonably similar situations.

The majority finds that Ms. Brown's testimony alone is not sufficient to create a genuine issue of material fact. In support, they cite Schwarzenberger v. Louisiana State Univ. Health Scis. Ctr. New Orleans, 2017-0024 (La. App. 4 Cir. 8/24/17), 226 So.3d 1200. In Schwarzenberger, the district court "properly discounted the self-serving and uncorroborated testimony of the appellant regarding loss of profits" when granting summary judgment as to the appellant's contract claims. Id. at 2017-0024, p. 14, 226 So.3d at 1210. As the Schwarzenberger court went on to state, in contract claims, loss of profits is only recoverable if the plaintiff shows that a loss of profits "is more probable than not," which this Court found, on de novo review, that the affidavits were not sufficient to establish. Id. at 2017-0024, p. 15, 226 So.3d at 1210.

This Court has not automatically disregarded all self-serving testimony on summary judgment. As this Court found in Weddborn v. Doe , an admittedly self-serving affidavit can create a genuine issue of material fact where it is not sufficiently countered by the movant. Doe, 2015-1088, p. 4, 194 So.3d at 84 (stating that the district court erred in granting summary judgment "as neither insurer properly supported its respective motion, given Ms. Weddborn's affidavits submitted in opposition to each motion. While we acknowledge that those affidavits are self-serving, we find that they are sufficient to create an issue of material fact....). Accordingly, the majority's reliance on Schwarzenberger for the general proposition that all self-serving testimony must be disregarded is misplaced. Additionally, in the case sub judice , the testimony at issue arose during a deposition where TBC was represented and had the opportunity to cross-examine. Accordingly, any issue regarding the self-serving nature of the testimony should have been addressed with contradictory evidence arising from such cross-examination.

Moreover, TBC's policies are contradictory such that a factual determination as to whether disparate treatment occurred must be made. The record indicates that TBC's policies require that employee uniforms be clean, decent, and appropriate. If employees violate this policy, they are subject to immediate termination. However, under the policies relevant to the case sub judice , TBC does not allow an employee to leave without delay should their uniform become soiled and thus in violation of its dress code. The policies when read together seem to result in a precarious situation in which Ms. Brown would have been immediately terminated had she been observed in her soiled clothing while making a call to a supervisor. The demonstrable absurdity of this result underscores the inappropriateness of summary judgment in this case.

Furthermore, the majority opinion evidences an improper merging of the steps of the McDonnell Douglas test. The majority writes as if it believes that Ms. Brown cannot prove that TBR's nondiscriminatory reason is a pretext for discrimination. Accordingly, the majority concludes that there is no genuine issue of material fact. Such analysis is improper on summary judgment. See Istre v. Meche, 2005-2508, p. 5 (La. 6/16/06), 931 So.2d 361, 364 (stating that "[w]hether a given action is reasonable under the circumstances is a factual determination which should not be made in the context of a summary judgment proceeding.").

In conclusion, there are genuine issues of material fact as to whether Ms. Brown received equal treatment from TBC. Considering the contradictions evident in TBC's policies, the likelihood of disparate treatment given those contradictions, and the fact that the likelihood of disparate treatment significantly weakens TBC's stated justification for terminating Ms. Brown, this pregnancy discrimination claim raises genuine issues of material fact requiring a full trial on its merits. For these reasons, I respectfully dissent.

      See Young, 135 S.Ct. at 1361-62 (J. Scalia dissenting) (stating that the purpose of the Pregnancy Discrimination Act is to ensure that pregnant women are "treated the same" as others of similar ability or inability).

      Contrast King v. Phelps Dunbar, L.L.P., 2001-1735, pp. 17-18 (La. App. 4 Cir. 4/2/03), 844 So.2d 1012, 1023 (finding that where member of an ethnic minority presented only his conclusory allegations that he was treated unequally from other associates at his law firm, no genuine issue of material fact remained as to unequal treatment preventing summary judgment).

      Compare Perez v. Tex. Dep't of Criminal Justice, 395 F.3d 206, 213 (5th Cir. 2004) (finding that "in disparate treatment cases involving separate incidents of misconduct ... for employees to be similarly situated those employees' circumstances, including their misconduct, must have been 'nearly identical' "). The question of two employees' misconduct is sufficiently similar is factual in nature.

      TBC's Employee Handbook states, in relevant part:
      The Following Is A Non-Exhaustive List of Causes for Immediate Dismissal
      * * *
      4. Immoral, indecent, or disorderly conduct, including fighting.
      * * *
      18. Disregard of Dress Code
      Antonio White ("Mr. White"), Ms. Brown's immediate supervisor at the time when she was terminated from TBC, elaborated on the "immoral, indecent, or disorderly" policy in his deposition. He stated that it would be "indecent" for an employee to remain on the worksite in a uniform that is not clean, which, according to the above-quoted policy, would subject that employee to immediate termination. Mr. White further stated that had an employee soiled themselves when he was present at the work site, he would have authorized them to leave. Moreover, TBC's dress code policy requires employees to dress "appropriately for the work [the employees] will be doing that day." The above-quoted portion of TBC's employee handbook indicates that disregard of the dress code subjects an employee to immediate termination. It is an issue for trial as to whether soiled clothing would meet TBC's dress code requirement to dress appropriate for a blood center.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Leonard Eugene PANARO and Bonnie Buras v. Kilee Mignon HOSKIN
    NO. 2017-CA-0847
    Court of Appeal of Louisiana, Fourth Circuit.
    MARCH 21, 2018
    DAVID MICHAEL HUFFT, PIVACH, PIVACH, HUFFT, THRIFFILEY & DUNBAR, L.L.C., 8311 Highway 23, Suite 104, Belle Chase, Louisiana 70037, COUNSEL FOR PLAINTIFFS/APPELLEES
    KILEE HOSKIN, 36965 Highway 11, Buras, Louisiana 70041, IN PROPER PERSON AS DEFENDANT/APPELLANT
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Regina Bartholomew Woods )
   JAMES F. MCKAY III, CHIEF JUDGE

In this child custody case, the defendant, Kilee Mignon Hoskin, appeals the district court's granting of sole custody to the plaintiff, Leonard Eugene Panaro. We affirm.

FACTS AND PROCEDURAL HISTORY

By way of background, Leonard Panaro and Kilee Hoskin are the biological parents of two minor children, both sons, thirteen (13) and eleven (11) years of age. Mr. Panaro and Ms. Hoskin were never married. Ms. Hoskin has a history of drug abuse and incarceration and also suffers from a bi-polar disorder. Bonnie Buras is Ms. Hoskin's mother and the grandmother of the two minor children.

On January 23, 2014, Leonard Panaro and Bonnie Buras filed a petition for child custody with ex parte child custody order. On January 24, 2014, the district court awarded temporary joint custody to Mr. Panaro and Ms. Buras. On February 13, 2014, the district court signed a consent judgment continuing joint custody of the two minor children with Mr. Panaro and Ms. Buras. The district court, on May 22, 2014, again continued the temporary joint custody of the minor children with Mr. Panaro and Ms. Buras. The May 22, 2014 judgment also granted Ms. Hoskin unsupervised visitation every other Saturday and Sunday from 10:00 a.m. to 5:00 p.m. However, the judgment prohibited Ms. Hoskin's boyfriend at that time, Kent Vaughn, from texting or being around the children. This was followed by a consent judgment, rendered by the district court on August 21, 2014, and signed on December 2, 2014, which continued joint custody with Mr. Panaro and Ms. Buras, but allowed Ms. Hoskin to now have the children overnight on her Saturday visitations.

On August 27, 2015, the district court signed a consent judgment which granted temporary joint custody of the children to Mr. Panaro and Ms. Hoskin, subject to a six month review by the court. Also contained within this consent judgment was the prohibition of Kent Vaughn having any contact with the two minor children.

On October 22, 2015, Ms. Hoskin violated the district court's August 27, 2015 judgment by allowing the two minor children to be in the presence of Kent Vaughn and travel in his vehicle. Thereafter, on October 23, 2015, Mr. Panaro and Ms. Buras filed a motion for contempt and to change child custody with an exparte order. The district court signed the ex parte order awarding temporary joint custody back to Mr. Panaro and Ms. Buras. At the same time, Ms. Hoskin's attorney, Patrick Eskew, filed a motion to withdraw, which the trial court granted.

On October 27, 2015, Ms. Hoskin hired a new attorney, Taetrece Harrison, who filed an answer and reconventional demand on behalf of Ms. Hoskin. A trial regarding the ex parte temporary custody order, signed on October 23, 2015, took place on November 16, 2015. After hearing testimony from several witnesses including Ms. Hoskin and Ms. Buras, the court issued an order continuing the temporary joint custody in favor of Mr. Panaro and Ms. Buras. Ms. Hoskin was granted visitation to be exercised at the residence of Mr. Panaro. The court again ordered that Kent Vaughn, who was now Ms. Hoskin's husband, have no contact with the children. In addition, the court appointed Julie C. Ruel, LPC to conduct a detailed custody evaluation.

On March 18, 2016, Mr. Panaro and Ms. Buras filed a second motion for contempt with ex parte termination of visitation, alleging that Ms. Hoskin again allowed Kent Vaughn to be around the two minor children. The court then held a status conference with counsel for both parties and Ms. Hoskin. Following the status conference, the court signed an order terminating Ms. Hoskin's visitation rights.

On March 23, 2016, Mr. Panaro and Ms. Buras filed a motion for injunction with implementation of parental guidelines. The injunction dealt with alleged defamatory/derogatory comments about Mr. Panaro and Ms. Buras that Ms. Hoskin posted on her Facebook page, knowing that one of her sons had access to her Facebook postings. This was followed by the withdrawal of Ms. Harrison as counsel for Ms. Hoskin on April 4, 2016. On May 3, 2016, Rachel Marinovich enrolled as Ms. Hoskin's third counsel of record.

On May 20, 2016, Mr. Panaro and Ms. Buras filed a motion to dismiss Ms. Hoskin's reconventional demand, contempt of court and request for permanent custody with incorporated memorandum. The motion to dismiss the reconventional demand was based on Ms. Hoskin's delays in completing the evaluation due to her failure to pay the evaluator as required by the court's December 1, 2015 order. On June 7, 2016, the district court denied Mr. Panaro's and Ms. Buras's motion to dismiss Ms. Hoskin's reconventional demand, while the hearing on the second motion for contempt was continued with the first motion for contempt.

On August 3, 2016, Mr. Panaro and Ms. Buras filed a motion for emergency order for drug testing of Ms. Hoskin. The district court set the hearing for August 15, 2016. At the hearing, Rachel Marinovich appeared without her client; she represented to the court that she attempted to contact her client without success. The court then issued a judgment ordering Ms. Hoskin to submit to a ten (10) panel hair drug test on or before August 19, 2016. Ms. Hoskin failed to meet this deadline. Thereafter, on August 23, 2016, Mr. Panaro and Ms. Buras filed a third motion for contempt. A hearing took place on September 6, 2016, where Rachel Marinovich again appeared without her client, representing that she was unable to contact Ms. Hoskin and did not know her current whereabouts. The court found Ms. Hoskin to be in contempt of court and ordered that she have no contact with the children pending further order of the court. The results of the ten (10) panel hair drug test were eventually filed into the record of this proceeding on January 12, 2017. The results indicated that the drug test was taken on November 14, 2016, and Ms. Hoskin tested positive for Cocaine, Marijuana and Benzoylecgonine.

Prior to trial on the issue of permanent custody, two important events occurred. First, on September 23, 2016, Ms. Hoskin called the Jefferson Parish Sheriff's Office to Kent Vaughn's home alleging that he had physically assaulted her and had stabbed her in the arm. She later admitted that she had lied to the police and that her injuries were self-inflicted. The second incident took place on October 5, 2016, when she self-admitted herself at the emergency room of University Medical Center with suicidal thoughts. She remained at the hospital until October 8, 2016, when she was discharged. Her psychiatric diagnosis upon discharge was: "Unspecified Bipolar 1 disorder, mild, in partial remission, Opioid use disorder, severe, in remission, Cannabis use disorder, mild, in partial remission, Borderline and Narcissistic personality traits, Parent-child relational problem, Relational Distress with Spouse and Other Adverse Effect of Medications."

On November 28, 29 and 30, 2016, the district court held a trial on the issue of custody and the previous motions for contempt that were filed by Mr. Panaro and Ms. Buras. On May 22, 2017, the district court issued a judgment awarding sole custody of the two minor children to Mr. Panaro. The court also ordered that Ms. Hoskin shall have therapeutic supervised visitation with the minor children through Sinfonia Family Services of New Orleans every other weekend for up to four hours at Ms. Hoskin's expense. The court also found Ms. Hoskin to be in contempt of court for failure to abide by the court's August 27, 2015 and November 19, 2015 judgments and ordered her to perform thirty (30) eight (8) hour days of community service. Ms. Hoskin now appeals the district court's granting of sole custody of the minor children to Mr. Panaro.

DISCUSSION

The Louisiana Supreme Court has described the appellate review standard by stating that "upon appellate review, the determination of the trial judge in child custody matters is entitled to great weight, and his discretion will not be disturbed on review on the absence of a clear showing of abuse." Bergeron v. Bergeron, 492 So.2d 1193, 1196 ; See also AEB v. JBE, 99-2668, p. 7 (La. 11/30/99), 752 So.2d 756, 761.

Louisiana Civil Code Article 132 provides:

If the parents agree who is to have custody, the court shall award custody in accordance with their agreement unless the best interest of the child requires a different award.
In the absence of agreement, or if the agreement is not in the best interest of the child, the court shall award custody to the parents jointly; however, if custody in one parent is shown by clear and convincing evidence to serve the best interest of the child, the court shall award custody to that parent.

Louisiana Civil Code Article 134 deals with the best interest of the child. That statute states:

The court shall consider all relevant factors in determining the best interest of the child. Such factors 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.
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 residences of the parties.
12) The responsibility for the care and rearing of the child previously exercised by each party.

"The best interest of the child standard, mandated by La. C.C. arts. 132 and 134, is a 'fact-intensive inquiry requiring the weighing and balancing of factors favoring or opposing custody in the competing parties on the basis of the evidence presented.' " Hilkirk v. Johnson, 2015-0577, p. 34 (La.App. 4 Cir. 12/23/15), 183 So.3d 731quoting Lannes v. Lannes, 2007-0345, p. 4 (La.App. 4 Cir. 2/13/08), 977 So.2d 1119, 1121. The factors outlined within Article 134 have been construed to be nonexclusive, "and the trial court has the discretion to determine the relative amount of weight to be given to each factor." Hilkirk, 2015-0577, p. 34, 183 So.3d at 740citing Hanks v. Hanks, 2013-1442, p. 9 (La.App. 4 Cir. 4/16/14), 140 So.208, 215 (citing Palazzo v. Mire,2008-0075, p. 34 (La.App. 4 Cir. 1/7/9), 10 So.3d 748, 768 ). "The court is not required to analyze mechanically all of the dozen factors, rather the court should balance and weigh the factors in view of the evidence presented." Id.; See also Alfonso v. Cooper, 2014-0145, p. 237-38 (La.App. 4 Cir. 7/16/14), 146 So.3d 796, 797.

In the instant case, the court heard from numerous witnesses and reviewed exhibits including medical records pertaining to Ms. Hoskin's mental health. The court heard testimony from Julie Ruel, LPC as to her findings/recommendations after a detailed custody evaluation. The court also heard from teachers regarding the improvement of the behavior and grades of both children since Ms. Hoskin has not had any custody of them. The evidence supports that awarding sole custody to Mr. Panaro is in the best interest of the children.

CONCLUSION

Based on the foregoing reasons, we find no error or abuse of discretion in the district court's awarding of sole custody of the two minor children to Mr. Panaro.

AFFIRMED

      Based on what Ms. Hoskin has filed with this Court, it does not appear that she is appealing the district court's holding her in contempt.