author: GRAVOIS, J.

text:
    Dodie PLAISANCE, Amelia Noel, Yvette Gautreaux, Gloria Willis, Patti Waddell, Julie Flatmann Cherie Varisco and Simone Duhon, Randi Hindman, Diane Nowik, Jackie Danilidis and Billie Gassen v. JEFFERSON PARISH SCHOOL BOARD
    NO. 18-CA-16
    Court of Appeal of Louisiana, Fifth Circuit.
    July 31, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, DODIE PLAISANCE, ET AL, Ronald L. Wilson, New Orleans
    COUNSEL FOR DEFENDANT/APPELLEE, JEFFERSON PARISH SCHOOL BOARD, Eve B. Masinter, E. Fredrick Preis, Jr., New Orleans
    Panel composed of Judges Susan M. Chehardy, Jude G. Gravois, and Stephen J. Windhorst
   GRAVOIS, J.

Appellants, ten elementary and middle school principals employed by the Jefferson Parish Public School System, who were demoted by the Jefferson Parish School Board ("the School Board") following the 2011-12 school year, appeal a partial final judgment signed by the trial court on August 21, 2017 confirming their demotions. For the following reasons, we affirm.

FACTS AND PROCEDURAL BACKGROUND

Appellants are Jackie Daniilidis, Simone Duhon, Julie Flattmann, Billie Gassen, Yvette Gauthreaux, Randi Hindman, Amelia Noel, Dodie Plaisance, Cherie Varisco, and Patti Waddell. Originally, on December 4, 2012, twelve principals (appellants plus Gloria Willis and Diane Nowik), filed a Petition for Damages and Declarative and Injunctive Relief against the School Board, alleging that their contracts of employment were breached by the School Board when they were removed from their principal positions following the 2011-12 school year, following a finding by the Superintendent that they were "incompetent" and/or "inefficient," as per La. R.S. 17:444(B). Another principal, Lisa Kendrick, was added as a plaintiff in an Amended Petition filed on December 12, 2013. Ten of the principals are before this Court in the instant appeal; three principals' cases were not decided in the partial final judgment on appeal and thus their claims remain pending in the district court proceeding. Eight of the appellants were removed as principals following the expiration of their contracts at the end of the 2011-12 school year. Two of the appellants were removed as principals also at the end of the 2011-12 school year, but during the unexpired terms of their contracts.

In their petition as amended, appellants alleged that Dr. James Meza, the Superintendent of Schools for Jefferson Parish, and the School Board, in adopting an initial policy on March 11, 2010 and a revised policy on October 5, 2011 regarding the use of the principals' "targeted growth scores" to determine competency, improperly and impermissibly unilaterally changed or modified their existing contracts, holding them accountable for matters that were not a part of their existing contracts (specifically, the "achievement of" their respective schools' growth target scores, rather than the "facilitation of" their respective schools' achievement of their growth target scores, as found in the policy in effect when their contracts were confected), applied those changes retroactively, and used those changes as a basis to find them incompetent and/or inefficient and to demote them from their positions as principal. Appellants also alleged that they were not given the required 120-days' notice prior to being demoted. Appellants also sought injunctive relief, seeking to enjoin the School Board from "maintaining its policy and/or practice of arbitrarily and capriciously terminating and/or demoting them in violation of state law and/or [the School Board's] own policies." Appellants also sought reinstatement to their positions of principal and damages. In lieu of reinstatement, appellants sought front pay.

In response, the School Board argued that it has always had the power to remove or demote principals for incompetence and/or inefficiency, terms that are used but not defined in either the contracts at issue or La. R.S. 17:444(B), and that the School Board's decisions to uphold the Superintendent's decisions not to renew appellants' contracts (or respectively remove two of them from their positions mid-contract) complied with all legal and statutory requirements, including notice and due process. The School Board argued that nothing in appellants' contracts suggested that the failure to meet their respective schools' growth target scores could not be considered when determining whether the respective principal was incompetent and/or inefficient and thus had met that criteria for removal. It further argued that the 120-days' notice requirement in La. R.S. 17:444(B)(4)(c)(i) does not apply when the principal is removed from her position for cause under La. R.S. l7:444(B)(4)(c)(iii) in the middle of the contract term, but rather only applied when an expiring contract would not be renewed.

All ten appellants received "charge letters" from the Superintendent notifying them of their impending removal. Of the ten appellants who are a part of this appeal, six appellants ultimately had a hearing before the School Board regarding the charges of incompetency and/or inefficiency forming the basis for their contracts' non-renewals or their terminations mid-contract. Because the remaining four appellants all elected to retire at the end of the 2011-12 school year in lieu of being removed and reassigned to another position, they were not offered hearings before the School Board. The Superintendent supported his decisions to remove the principals with the introduction of the relevant School Board policies, the principals' respective schools' report cards from the prior 3-4 years, which included whether the principals' respective schools had met their growth targets or had shown progress, and other documentary evidence, as well as testimony from the School System's chief human capital officer and the principals' network executive directors. Appellants' counsel appeared at the hearings, but waived appellants' appearances, called no witnesses, and offered no evidence to refute the School Board's evidence supporting the Superintendent's determinations that the principals were incompetent and/or inefficient as per La. R.S. 17:444(B).

After the hearings before the School Board resulted in the confirmation of the Superintendent's decisions to remove appellants from their respective positions as principal, appellants filed suit in the district court as noted above. Following a hearing held on April 12, 2016, the trial court in a judgment signed on June 13, 2016 held that the adoption and revision of the policy in question by the School Board during the contract periods in question and the resultant use of State targeted growth scores to determine incompetence and/or inefficiency did not violate the applicable statute ( La. R.S. 17:444(B) ), or the principals' contracts. The trial court implicitly rejected appellants' retroactivity arguments. The June 13, 2016 judgment was amended on July 25, 2016 to provide that the School was not authorized to remove the eight principals who were removed at the expiration of their contract terms without providing them with 120-days' notice prior to the terminations of their contracts, and that the two principals who were terminated during the terms of their contracts were entitled to a fair hearing and reasonable notice prior to the terminations of their contracts. The subsequent partial final judgment of August 21, 2017 under review herein awarded the eight appellants whose contracts were not renewed 120 days of pay in lieu of proper notice. The judgment also awarded the two appellants who were removed during the terms of their contracts lost wages from the date of their removals (June 30, 2012) through the dates of their respective hearings before the School Board. The trial court also held that appellants' contracts (those whose contracts were not renewed) did not reconduct for another two-year term, thus denying appellants' request for reinstatement and full back pay.

On appeal, appellants argue that the trial court erred in three respects. First, they argue that the trial court erred in finding that the School Board could unilaterally modify the existing contracts between the School Board and appellants by incorporating the use of State targeted growth scores into their existing contracts. Second, they argue that the trial court erred in holding that the modified contracts could be applied retroactively to hold appellants accountable for the performance of duties and responsibilities that were not part of their existing contracts. Third, appellants argue that the trial court erred in finding that their employment contracts reconducted for a period of only 120 days, rather than the entire contract period of two years.

STANDARD OF REVIEW

In Spears v. Beauregard Par. Sch. Bd ., 02-2870 (La. 6/27/03), 848 So.2d 540, 544, the Louisiana Supreme Court explained the standard of review in tenure proceedings, to-wit:

In Howell v. Winn Parish School Bd. , 332 So.2d 822 (La. 1976), we held that judicial review of tenure proceedings must be limited to an inquiry of whether the School Board complied with the statutory formalities under Louisiana's Teacher Tenure Law and whether the School Board's findings were supported by substantial evidence.... In conducting such an examination, the district court must give great deference to the school board's findings of fact and credibility.
Arriola v. Orleans Parish Sch. Bd ., 01-1878 (La. 2/26/02), 809 So.2d 932, 941. Reasons for dismissal are largely in the sound discretion of the school board. Gaulden v. Lincoln Parish School Board , 554 So.2d 152, 157 (La. App. 2 Cir. 1989), writ denied , 559 So.2d 126 (La. 1990). Thus, the school board's judgment should not be reversed in the absence of a clear showing of abuse of discretion. Id. ...
The district court may not substitute its judgment for that of the school board or interfere with the school board's good faith exercise of discretion. Howard [v. West Baton Rouge Parish School Bd.] , 793 So.2d 153, at 153 [ (2000) ] ; McLaughlin v. Jefferson Parish School Board , 560 So.2d 585 (La. App. 5 Cir. 1990) ; Sampson v. Lincoln Parish School Board , 439 So.2d 454 (La. App. 2 Cir. 1983). The district court's responsibility in such a case is to determine whether the school board's action was supported by substantial evidence, or conversely, constituted an arbitrary decision and thus an abuse of discretion. Howell , 332 So.2d at 825 ; Roberts v. Rapides Parish School Board , 617 So.2d 187, 190 (La. App. 3 Cir.), writ denied , 619 So.2d 1068 (La. 1993). As with the district court, a court of appeal may not reverse the decision of a district court unless it finds the school board's termination proceedings failed to comply with statutory formalities and/or the school board's findings were not supported by substantial evidence. Wiley v. Richland Parish School Bd. , 476 So.2d 439, 442 (La. App. 2 Cir. 1985) ; Cook v. Natchitoches Parish Sch. Bd. , 342 So.2d 702 (La. App. 3 Cir. 1977), writ denied , 345 So.2d 52 (La. 1977) ; Mims v. West Baton Rouge Parish Sch. Bd. , 315 So.2d 349 (La. App. 1 Cir. 1975).

At issue in this case is the application of La. R.S. 17:444(B)(4)(c)(i)-(v), dealing with promotions to and employment by teachers into positions of higher salary and tenure, which provide:

(i) The board and the employee may enter into subsequent contracts of employment. Not less than one hundred and twenty days prior to the termination of such a contract, the superintendent shall notify the employee of termination of employment under such contract, or in lieu thereof the board and the employer may negotiate and enter into a contract for subsequent employment.
(ii) The employee may choose not to enter into subsequent contracts and may either terminate his employment or, if he has acquired permanent status as a teacher, resume employment as a teacher.
(iii) The employee shall be retained during the term of a contract unless the employee is found incompetent or inefficient or is found to have failed to fulfill the terms and performance objectives of his contract. However, before an employee can be removed during the contract period, he shall have the right to written charges and a fair hearing before the board after reasonable written notice.
(iv) The board shall negotiate and offer a new contract at the expiration of each existing contract unless the superintendent recommends against a new contract based on an evaluation of the contractee as provided for in R.S. 17:391.5, or unless failure to offer a new contract is based on a cause sufficient to support a mid-contract termination as provided in Item (iii) of this Subparagraph, or unless the position has been discontinued, or unless the position has been eliminated as a result of district reorganization, provided that should the position be re-created, the employee, if still employed by the board, shall have first right of refusal to the re-created position.
(v) If the contracted employee is removed or not renewed and had previously acquired permanent status as a teacher, he shall be returned to his former position as a teacher or to a position paying the same salary as his former position as a teacher unless he chooses to terminate his employment.

FIRST ASSIGNMENT OF ERROR

Breach of employment contract

Appellants argue that the School Board's use of their respective schools' State targeted growth scores to demote them for cause, "particularly since they were not mentioned in, or made a part of, the existing contract between [Appellants] and the Board," amounted to an impermissible and unlawful unilateral change of appellants' existing obligation under their employment contracts. Appellants argue that they had legitimate, binding contracts with the School Board, setting forth "in great detail" the duties and responsibilities of principals, and as such, the School Board was prevented from unilaterally modifying the contracts.

In response, the School Board argues that its adoption of the initial policy in 2010 and the revised policy in 2011 did not serve to alter the principals' contracts in any way. The School Board argues that all of the principals' contracts specifically authorize the removal of a principal who is found to be incompetent, a term that is not defined by the contracts or the relevant statute where it appears ( La. R.S. 17:444(B)(4)(c)(iii) ). The School Board further argues that nothing in the principals' contracts prohibited the School Board from using the State targeted growth scores to find the principals incompetent based upon their failure to meet their State targeted growth scores.

As this case hinges partly on the interpretation of the principals' contracts, it is useful at this juncture to consider the law on contract interpretation. The interpretation of a contract is the determination of the common intent of the parties. La. C.C. art. 2045. For purposes of interpreting a contract, a contract is "ambiguous" when it lacks a provision bearing on the issue, its written terms are susceptible to more than one interpretation, there is uncertainty as to its provisions, or the parties' intent cannot be ascertained from the language used. Lomark, Inc. v. LavigneBaker Petroleum, LLC , 12-389 (La. App. 5 Cir. 2/21/13), 110 So.3d 1107, 1111. The common intent of the parties to a contract is determined in accordance with the general, ordinary, plain and popular meaning of the words used in the contract. Id. (Internal citations omitted.)

The record establishes that principals in the Jefferson Parish Public School System are employed under two-year contracts, which contain the option of being renewed upon their expiration. The ten appellants each entered into their original contracts on various dates, some prior to the passage of the 2010 initial policy at issue, and at least three who signed contracts in 2010 after the effective date of the 2010 initial policy. Each year, every school operated by the School Board receives a School Performance Score ("SPS"), which is based 90 per cent on student achievement on State standardized tests. The State Department of Education also sets a performance goal for each school based on its SPS, which is called an SPS growth target. The SPS and SPS growth targets have been determined by the State Department of Education and considered by the School Board for many years prior to the adoption of the initial policy in 2010, as revised in 2011, and principals always received notice of their SPS growth targets.

Appellants' contracts that were introduced into the record form two groups. The contracts of appellants Daniilidis (signed in 1998), Flattmann (signed in 2005), Gauthreaux (signed in 2005), Hindman (signed in 2007), Plaisance (signed in 2007), and Noel (signed in 2009) were signed prior to the adoption of the 2010 policy. Each contained an identical Section IV, entitled "Performance Responsibilities of Appointee," which reads as follows:

(A) Appointee shall faithfully and fully discharge and perform all duties of the position to which he/she has been appointed as defined in the job description and measured by the instruments defined in the Personnel Evaluation Plan. The Appointee shall comply with all policies, rules, and regulations adopted by the School Board.
(B) In addition to those duties of employment set forth above, Appointee also acknowledges that, as a condition of continued employment under this contract, he/she must fully, efficiently, and timely achieve the specific performance objectives of this position as indicated on Jefferson Parish Schools Goals and Objectives Specification Form.
(Emphasis added.)

The contracts entered into evidence for appellants Duhon, Gassen, and Waddell were all signed in 2010, after the adoption of the aforementioned 2010 policy, but prior to the 2011 revision. Those contracts' Section IV, also entitled "Performance Responsibilities of Appointee," contain additional language italicized below specifically referring to the SPS growth target scores, to-wit:

(A) Appointee shall faithfully and fully discharge and perform all duties of the position to which he/she has been appointed as defined in the job description and measured by the instruments defined in the Personnel Evaluation Plan. The Appointee shall comply with all policies, rules, and regulations adopted by the School Board.
(B) The appointee will be supplied with his/her school performance growth target score (SPS) prior to the beginning of each school year. Should the appointee not meet her/his target score in any year, she (he) may be removed from the school. If the school fails to meet her SPS for three (3) consecutive years, the appointee will be removed from the school. The appointee may be placed in other positions of equal standing and salary or, if given an unsatisfactory evaluation, upon recommendation of the Superintendent to the Board, may be subject to demotion at the termination of the appointee's contract term. Demotion may be recommended by the Superintendent to the Board during the contract term if the superintendent believes that the appointee is incompetent or inefficient or has failed to fulfill the terms and performance objectives of her (his) contract and sufficient evidence exists to do so, after hearing before the Board.
(C) In addition to those duties of employment set forth above, Appointee also acknowledges that, as a condition of continued employment under this contract, he/she must fully, efficiently, and timely achieve the specific performance objectives of this position as indicated on Jefferson Parish Schools Goals and Objectives Specification Form.

As such, we see that the contracts themselves, both before and after 2010, do not set forth "in great detail" the principals' duties and responsibilities regarding performance, as claimed by appellants, but rather refer to documents outside of the contracts, such as the job title description and a goals and objectives specification form. Importantly, however, each contract in evidence specifically states in Section IV(A) that the principal "shall comply with all policies, rules, and regulations adopted by the School Board," and without regard to when such are adopted by the School Board.

As represented in the record, school growth targets have been made integral to a principal's performance duties since at least 2005. In a job title description from 2005 entered into evidence, the section entitled "Performance Responsibilities/Essential Functions" stated that principals were responsible for "[a ]ttain [ing ] the schools growth target as defined by the state's accountability program or show[ing] progress in reaching the target." (Emphasis added.) This requirement was revised later in 2005 to state that the principal was responsible for "[f ]acilita [ting ] the school's growth target as defined by the state's accountability program or show[ing] progress in reaching the target." (Emphasis added.)

The new policy adopted in 2010, ostensibly during the contract terms of six of the subject principals, but prior to the latest contract terms of three of the subject principals, reads as follows:

Schools not meeting the state determined School Performance Growth Target Score.
Any school not meeting its state determined school performance growth target score (SPS) may be reconstituted. Any school not doing so for three (3) consecutive school years shall be reconstituted. Reconstitution will include, but necessarily be limited to the following:
1.) the replacement of the principal, and 2.) the replacement of other administrators as deemed necessary by the Superintendent.
The principal and administrators, as deemed necessary, of a school not meeting its required SPS may be placed in other positions of equal standing and salary or, if given unsatisfactory evaluations, upon recommendation to the Board, may be subject to demotion at the termination of the principal's or administrator's contract term or, if demotion is recommended by the Superintendent during the contract term1 and sufficient evidence exists to do so, after hearing before the Board.
The replacement of teaching staff members of a school not making its required SPS growth target may be replaced as deemed necessary when a reconstitution takes place.
Teachers may re-interview for positions at the school. These interviews will be conducted by the newly assigned principal.

As seen, this policy allowed permissive (or discretionary) reconstitution when a school failed to meet its growth target for one year. The policy called for mandatory reconstitution in the event the school did not meet its growth target for three consecutive years.

The policy was revised in 2011 to read as follows, with the pertinent added language italicized:

Schools not meeting the state determined School Performance Growth Target Score.
Any school not meeting its state determined school performance growth target score (SPS) may be reconstituted. Any school not doing so for three (3) consecutive school years shall be reconstituted. Reconstitution will include but not necessarily be limited to the following:
1.) the replacement of the principal, and
2.) the replacement of other administrators as deemed necessary by the Superintendent.
The principal and administrators, as deemed necessary, of a school not meeting its required SPS Growth Target Score may be placed in other positions of equal standing and salary or, if given an unsatisfactory evaluation(s), upon recommendation to the Board, may be subject to demotion at the termination of the principal's or administrator's contract term or, if demotion is recommended by the Superintendent during the contract term and sufficient evidence exists to do so, after healing before the Board. The Superintendent may recommend an extension of a principal's contract in such cases if compelling evidence exists to do so.
The replacement of teaching staff members of a school not making its required SPS growth target may be replaced as deemed necessary when a reconstitution takes place.
Teachers may re-interview for positions at the school. These interviews will be conducted by the newly assigned principal.

Upon review, we find no abuse of discretion in the trial court's finding that the contracts in question, both those entered into prior to 2010 and those that were signed in 2010, do not prohibit the use of SPS and/or SPS growth targets to determine a principal's competency. The contracts are unambiguous. The express language in all of the contracts states that "the Appointee shall comply with all policies, rules, and regulations adopted by the School Board." The contracts specifically incorporate all School Board policies. The contracts are not changed, therefore, because the School Board adopted the initial policy in 2010 regarding the use of SPS growth targets to evaluate a principal's competency. Certainly, as to appellants Duhon, Gassen, and Waddell's 2010 contracts, the 2010 policy's directive is specifically contained in their contracts, and therefore, as to them, there can be no credible argument made that they are not so bound.

The ability to formulate policies such as the ones in question undoubtedly serves the School Board's duty to prioritize student achievement by providing for the reconstitution of schools that are failing or have not met their growth targets. There is nothing in the principals' contracts that limits the School Board's powers to form specific policies to those ends, or limits the immediate application of new policies that are established during any appointee's contract period. This assignment of error is without merit.

SECOND ASSIGNMENT OF ERROR

Retroactive application of policy

Appellants next argue that the trial court's application of the policy to their schools' performances in the school years prior to its passage in 2010 (as far back as the 2008-09 school year) is a violation of law. Appellants argue that the general rule against retroactive application of legislative enactments is clear, and that the same rules that apply to legislative bodies apply to school boards, the latter being "agenc[ies] of the state of Louisiana." Appellants supply no legal authority for their position, however. Appellants cite to La. R.S. 17:81(C), entitled "General powers of local public school boards," which states:

C. Each city or parish school board is authorized to make such rules and regulations for its own government, not inconsistent with law or with the regulations of the State Board of Elementary and Secondary Education, as it may deem proper.

This section, however, does not, as appellants claim, address the school board's policy-making function, nor does it equate policy-making to the legislative process, or policies to legislation. Appellants cite Rousselle v. Plaquemines Par. Sch. Bd. , 93-1916 (La. 2/28/94), 633 So.2d 1235, 1238, in support of their position; however, Rousselle considered the retroactivity of an amendment to a statute, La. R.S. 17:444(B)(4)(c)(iv), not the retroactivity of a policy enacted by a school board.

Like the trial court, this Court need not reach the issue under the facts of this case of whether the 2010 initial policy was applied retroactively, i.e. , using growth target data from the school years prior to its establishment in 2010. The 2010 policy provides for discretionary reconstitution in the event a school did not meet its growth target once. The evidence in this record, which was uncontroverted, shows that each appellant failed to meet their growth target for the 2010-11 school year, as well as were projected to miss their growth target again in the 2011-12 school year. Thus, each appellant was subject to demotion based entirely on their data from the school years subsequent to the School Board's establishment of the 2010 policy. This Court further notes that the 2010 contracts of appellants Duhon, Gassen, and Waddell explicitly included the 2010 policy, in Section IV(B), as noted above. Accordingly, this assignment of error is without merit.

THIRD ASSIGNMENT OF ERROR

Required notice of non-renewal/removal

Appellants finally argue that the failure to give them 120-days' notice of their contracts' non-renewal had the legal effect of reconducting their entire contract term; thus, they should have received new two-year contracts or payment for the same. The trial court disagreed, finding instead that the contracts reconducted for only 120 days, and awarded eight appellants damages in the amount of 120-days' salary.

Each contract at issue contained the following provision in Section VII, entitled "Issuance of New Contract, Non-Renewal or Termination at Expiration of Term," to-wit:

(B) If the School Board decides not to renew this contract, it shall give the Appointee written notice thereof not less than one hundred twenty (120) days prior to the expiration date of this contract, provided, however, that failure to give Appointee written notice at least one hundred twenty (120) days prior to the expiration date of this contract shall not operate to renew this contract and appointment for an equivalent term, but shall only cause such contract and appointment to be extended on a day-by-day basis until one hundred twenty (120) days have passed since such notice was given.
(Emphasis added.)

This provision is unambiguous. The trial court followed this provision exactly as written, awarding the eight appellants whose contracts were not renewed (appellants Daniilidis, Duhon, Flattmann, Gassen, Gauthreaux, Plaisance, Varisco, and Waddell) 120-days' pay due to them for not having received the contractually required notice.

Appellants argue, however, that this contractual provision differs from La. R.S. 17:444(B)(4)(c)(i), quoted supra , which must control. However, La. R.S. 17:444(B)(4)(c)(i) is silent on the issue of reconduction. Thus, it does not require, as appellants claim, a reconduction of the contract if an appointee does not receive the 120-days' notice of non-renewal. Instead, La. R.S. 17:444(B)(4)(c)(v), quoted supra , requires that the removed principal be returned to his former status as a teacher, if the appointee had previously acquired permanent status as a teacher. The evidence in the record, summarized by a table entered into evidence, shows that each appellant who did not retire at the end of the 2011-12 school year was employed elsewhere by the School System at the time of the proceedings in the district court. Thus, it appears that every demoted principal who did not retire was in fact subsequently employed in the School System in accordance with La. R.S. 17:444(B)(4)(c)(v).

Appellants also argue that in Wright v. Caldwell Parish Sch. Bd. , 98-1225 (La. 3/2/99), 733 So.2d 1174, the Supreme Court found that the obligation to renew a contract when the appointee was not given the statutory 120-days' notice of non-renewal applied only to "subsequent" contracts and not the non-renewal of an initial contract. However, that Court did not consider the exact legal question before this Court, given that the tenure status of the principal/teacher in Wright was unknown. Thus, we find that case distinguishable and not controlling under the present facts.

The two remaining appellants who were removed during the term of their contracts (appellants Hindman and Noel) received lost wages from the date of their removal on June 30, 2012 until the dates of their hearings before the School Board. Like the other eight appellants, the two appellants who were removed from their positions as principal during the term of their contracts are not entitled to reconduction of their contracts. They are governed by La. R.S. 17:444(B)(4)(c)(iii), quoted supra , which only requires that a principal receive written charges and a fair hearing before the School Board before being removed from their positions. Accordingly, we find no merit to appellants' argument that they were entitled to reconduction of their contracts. This assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the judgment under review is affirmed.

AFFIRMED

      This is the parties' second appeal. Prior to this appeal, appellants devolutively appealed the trial court's July 25, 2016 judgment. On April 12, 2017, this Court dismissed that appeal without prejudice for lack of jurisdiction, finding that the judgment lacked proper decretal language and was not a final, appealable judgment. See Dodie Plaisance, et al. vs. Jefferson Parish School Board , 16-747 (La. App. 5 Cir. 4/12/17), 218 So.3d 708, 713. On remand, the School Board filed a Motion to Enter Final Judgment. At the hearing on the motion held on August 18, 2017, the trial court made clear that it intended for all ten appellants' cases to be completely resolved by the July 25, 2016 judgment, and that only the issues pertaining to the three remaining principals (Gloria Willis, Diane Nowik, and Lisa Kendrick) remained. The partial final judgment was signed on August 21, 2017.

      Although the Amended Petition provides the name of this plaintiff as "Lisa Kendricks," the record reflects that the correct spelling of her last name is "Kendrick."

      The contracts of Gloria Willis, Diane Nowik, and Lisa Kendrick were not renewed because their schools were closed and/or consolidated after the 2011-12 school year, thus eliminating their positions, unlike the other ten principals.

      These eight appellants are Jackie Daniilidis, Simone Duhon, Julie Flattmann, Billie Gassen, Yvonne Gauthreaux, Dodie Plaisance, Cherie Varisco, and Patti Waddell.

      These two appellants are Randi Hindman and Amelia Noel.

      In most cases, these letters were sent to appellants after the end of the 2011-12 school year, which ended on June 30, 2012.

      These six appellants were Gassen (hearing date 12/10/12), Gauthreaux (hearing date 4/15/13), Hindman (hearing date 2/25/13), Noel (hearing date 2/18/13), Plaisance (hearing date 4/15/13), and Varisco (hearing date 2/25/13).

      These four appellants were Daniilidis, Duhon, Flattmann, and Waddell.

      All of the appellants who received hearings before the School Board were represented by the same counsel.

      It is important to note that none of the appellants challenged the factual data presented at their demotion hearings before the Board, including their schools' targeted growth scores as calculated by the State Department of Education, nor the fact that their schools had not met their targeted growth scores.

      Nine of the ten appellants' latest employment contracts were entered into evidence (attached to a Stipulation of Facts). No employment contract was found for Cherie Varisco.

      Factual information has been taken largely from the stipulated facts submitted by the parties to the district court.

      As each of these appellants was serving as a principal in the 2011-12 school year, it is obvious that their original contracts had been renewed at least once. Furthermore, no principal contract was found for appellants Plaisance or Gauthreaux. Their contracts are for appointment as Assistant Principal, though in all other aspects except for salary information, these contracts are identical to principal contracts.

      The items listed in the 2005 job description of principal have been referred to by the parties as "policies."

      It was explained in the trial court that the 2011 revision was to give the Superintendent the discretion, upon "compelling evidence" (which was not defined in the policy) to extend a principal's contract whose school otherwise fell within the policy's criteria for mandatory reconstitution. It was explained in the record that such compelling evidence was that a school would be projected to be within 4 points of achieving its growth target.

      Furthermore, we must reconcile the following seemingly contradictory statement made by the trial court in its June 13, 2016 judgment:
      The use of State targeted growth scores in determining whether for removal purposes Plaintiffs were incompetent or inefficient did not violate Plaintiffs' contracts, and Plaintiffs' failure to achieve their respective growth scores could validly serve as the basis of an incompetency or inefficiency finding by the Board. However, the failure to achieve a specific growth score could not serve as cause for removal of Plaintiffs based upon an alleged failure to fulfill the terms and performance objectives of Plaintiffs' contracts because the contracts did not require attainment of a specific growth target, but only required Plaintiffs to facilitate a school's growth target or show progress in reaching that target.
      This statement recognizes, correctly, that a principal may be removed for 1) incompetency, 2) inefficiency, or 3) failure to fulfill the terms and performance objectives of her contract. We find that it is not prohibited by statute or the contracts that the same facts could be used to support these alternative bases for removal. (See , for example, Irchirl v. Natchitoches Parish School Board , 12-488 (La. App. 3 Cir. 11/28/12), 103 So.3d 1237, wherein the Third Circuit found that the exact same alleged behavior could support alternative bases of charges against the teacher in a termination proceeding.) However, based upon our holding that appellants were contractually bound under Section IV of their contracts to all School Board policies regardless of whether said policies were established before or during their contractual terms, we disagree with the trial court's statement that the attainment of specific growth targets was not specifically required by the terms of their contracts. However, this disagreement is not determinative to our ruling, as we affirm the finding that failure to meet the SPS growth targets could be used by the Superintendent and the School Board to determine competency.

      This Court takes note of La. R.S. 17:81(A)(1), which provides that "Each local public school board shall serve in a policymaking capacity that is in the best interests of all students enrolled in schools under the board's jurisdiction. When establishing board policies, each board shall prioritize student achievement, financial efficiency, and workforce development on a local, regional, and statewide basis."
      Though this section was amended by La. Acts 2012, no. 1, and was effective July 1, 2012, it is clear that school boards had policy-making authority prior to that date, as evidenced by the various employment contracts found in this record dating back to 1998 (Daniilidis) which refer to School Board policies, the 2005 "policies" found in the principals' job description, and the 2010 policy and 2011 revision at issue in this case. The focus of the amendment of La. R.S. 17:81(A)(1) was apparently not to establish boards' policy-making authority, but to delegate the administrative authority (i.e. , employment decisions) previously held by local school boards to superintendents. See La. Fed'n of Teachers v. State , 14-0691 (La. 10/15/14), 171 So.3d 835, 849.

      For the 2011-12 school year, the "unweighted" or preliminary SPS projection was based solely on student standardized test scores, which ultimately make up 90 per cent of the final SPS, and does not include the data comprising the remaining 10 per cent of the score, which is absenteeism and/or dropout rates where applicable. Corrected or final SPS scores are not available until well after the end of the school year; thus, decisions to demote are made using the latest year's unweighted SPS, which has been deemed a reliable indicator of the final SPS, given the weight of test scores.

      It is important to note that the School Board did not appeal the judgment awarding each plaintiff varying amounts of pay. Thus, the only issue before this Court is whether the trial court erred in finding that the lack of notice did not result in reconducting the contracts for the entire two-year period.


source: Caselaw Access Project

author: CHAISSON, J.

license: Public Domain

text:
    Angela Douglas LYLE v. BROCK SERVICES, LLC
    NO. 18-CA-50
    Court of Appeal of Louisiana, Fifth Circuit.
    July 31, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, ANGELA DOUGLAS LYLE, Wade A. Langlois, III, Brittany A. Cooper, Gretna
    COUNSEL FOR DEFENDANT/APPELLEE, BROCK SERVICES, LLC, Eric J. Waltner, Lafayette
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore
   CHAISSON, J.

In this claim for workers' compensation benefits, the employee, Angela Douglas Lyle, appeals the decision of the workers' compensation judge that granted summary judgment in favor of her employer, Brock Services, L.L.C. ("Brock"), on the issue of whether Mrs. Lyle suffered an occupational disease within the meaning of the Louisiana Workers' Compensation Act ("LWCA"). For the following reasons, we affirm the ruling of the workers' compensation judge.

FACTS AND PROCEDURAL HISTORY

Mrs. Lyle began her employment with Brock in the payroll division in March of 2013. Her office was located in a trailer on the premises of the Valero plant in Norco. Mrs. Lyle claimed that from the beginning of her employment, she observed mold throughout the trailer on air vents, window sills, ceiling tiles, and baseboards, and that over time, the amount of mold increased. According to Mrs. Lyle, she began experiencing symptoms in the spring and summer of 2015, which included fatigue, phlegm in her chest and throat, burning, watery eyes, and sores in her nose. Throughout the year, her symptoms worsened, and on December 31, 2015, she suffered a nosebleed in front of her safety manager, which prompted a medical evaluation.

After testing confirmed the presence of mold and fungal spores in the offices, the trailer, in which Mrs. Lyle worked, was replaced in January of 2016. Thereafter, Mrs. Lyle's headaches and nosebleeds stopped, but she continued to experience fatigue, phlegm in her chest and throat, and burning eyes. According to Mrs. Lyle, by April of 2016, her symptoms progressed, and she started experiencing pain in various parts of her body, increased fatigue, shortness of breath, and cognitive problems. In light of the progression of her symptoms, Mrs. Lyle resigned from her employment with Brock on June 19, 2016.

By August of 2016, Mrs. Lyle began experiencing abdominal bloating, numbness and tightness in her abdomen, swelling under her arms, and the feeling of having lumps under her skin. In addition, her breathing difficulties, upper back pain, and fatigue were all getting worse. In October of 2016, Mrs. Lyle went to the St. Tammany Parish Hospital emergency room two times due to her worsening symptoms. After a battery of tests, Mrs. Lyle was diagnosed with sarcoidosis 2 of her lungs and lymph nodes.

On November 15, 2016, Mrs. Lyle filed a disputed claim for compensation with the Office of Workers' Compensation, alleging an occupational disease and seeking wage and medical benefits, choice of physician, and penalties and attorney's fees. Brock filed an answer to her claim on December 7, 2016, and requested a preliminary determination hearing in accordance with La. R.S. 23:1201.1. After a hearing, the workers' compensation judge determined that "Mrs. Lyle's claim for Workers' Compensation benefits is denied." In its decision rendered on June 23, 2017, the workers' compensation court expressed that under the particular facts of this case, the issue of mold exposure and the consequential issue of a clerical worker contracting sarcoidosis due to mold exposure at the office do not fall under the LWCA and further that neither the mold exposure nor developing sarcoidosis qualifies as an accident or an occupational disease under the LWCA.

On August 25, 2017, Brock filed a motion for summary judgment alleging that there is no genuine issue of material fact "that this claim is not compensable because the claimant cannot establish the existence of an occupational disease as required by the Act," and thus, Brock is entitled to judgment as a matter of law. In its memorandum in support of its motion, Brock specifically argued that sarcoidosis is not an enumerated disease under the act and no evidence has been presented to show that sarcoidosis was due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which Mrs. Lyle was employed. Mrs. Lyle thereafter filed an opposition to the motion for summary judgment, asserting that summary judgment is precluded because there remains a critical question of fact to be decided, that being whether Mrs. Lyle's sarcoidosis was caused by her employment at Brock.

At the September 15, 2017 hearing on the motion for summary judgment, the parties submitted all the exhibits that were previously presented during the preliminary determination hearing, which included, among other items, Mrs. Lyle's medical records and the deposition testimony of Dr. Lesley Saketkoo, Mrs. Lyle's treating physician, and Dr. Brobson Lutz, an expert retained by Brock to evaluate the case. After considering the arguments of counsel and the exhibits introduced, the workers' compensation judge granted Brock's motion for summary judgment and dismissed her claim with prejudice on the basis that Mrs. Lyle's sarcoidosis did not satisfy the definition of "occupational disease" under the LWCA. The workers' compensation judge subsequently issued written reasons, in which she explained her ruling as follows:

Louisiana Revised Statute § 23:1031.1(B) provides that "[a]n occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease." In interpreting La. R.S. § 23:1031.1(B), the Fourth Circuit has determined that injuries and illnesses resulting from mold exposure in a clerical job do not constitute an actionable Worker's Compensation claim as they do not present an "occupational disease" as defined in the Act. See Ruffin v. Poland Enterprises, L.L.C., 2006-0244 (La. App. 4th 12/13/06), 946 So.2d 695, 699-700, writ denied , 954 So.2d 163 (La. 2007) ; Watters v. Dep't of Social Services , 2008-0977 (La. App. 4th Cir. 6/17/09), 15 So.3d 1128, 1141, writ denied , 2009-1651 (La. 10/30/09), 21 So.3d 291. Thus, as a matter of law, Claimant's sarcoidosis is not an "occupational disease" that is compensable under the Louisiana Worker's Compensation Act. The Court therefore makes no determination on the issue of causation.

Mrs. Lyle now appeals, setting forth the following assignment of error:

The OWC legally erred by ignoring the Louisiana Supreme Court's last expression of the law regarding what constitutes an "occupational disease" under La. R.S. § 23:1031.1 as set forth in Arrant v. Graphic Packaging International, Inc. , 2013-2878 (La. 5/5/15), 169 So.3d 296, in favor of contrary appellate jurisprudence.

DISCUSSION

A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Upton v. Rouse's Enterprise, LLC , 15-484 (La. App. 5 Cir. 2/24/ 16), 186 So.3d 1195, 1198, writ denied , 16-580 (La. 5/13/16), 191 So.3d 1057. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2).

According to La. C.C.P. art. 966(A)(3), 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 mover is entitled to judgment as a matter of law. The burden of proof is on the party moving for summary judgment. 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 is not required 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. The burden then shifts to the adverse party 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).

Appellate courts review a judgment granting or denying a motion for summary judgment de novo . Thus, appellate courts ask the same questions the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Upton v. Rouse's Enterprise LLC , 186 So.3d at 1198-99. The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Ricalde v. Evonik Stockhausen, LLC , 16-178 (La. App. 5 Cir. 9/22/16), 202 So.3d 548, 551-52, writ denied , 16-1923 (La. 12/16/16), 212 So.3d 1170.

For purposes of workers' compensation claims, an occupational disease is defined in La. R.S. 23:1031.1(B) as follows:

An occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease. Occupational disease shall include injuries due to work-related carpal tunnel syndrome. Degenerative disc disease, spinal stenosis, arthritis of any type, mental illness, and heart-related or perivascular disease are specifically excluded from the classification of an occupational disease for the purpose of this Section.

In determining whether an illness constitutes an occupational disease within the meaning of the LWCA, courts have consistently considered the employee's work-related duties and the nature of the employment. In Ruffin v. Poland Enterprises L.L.C., supra , the Fourth Circuit addressed the same issue that is presently before this Court - whether mold exposure in the workplace constituted an occupational disease within the meaning of the LWCA. In that case, state employees filed a tort suit against their employer, the Department of Social Services and the Division of Administration, alleging that they suffered injuries and illnesses due to their exposure to mold and/or contaminants in and around their workplace. In response, the employer asserted the affirmative defense that the employees were prohibited from pursuing a tort claim under the provisions of the LWCA. The employees thereafter filed a motion for partial summary judgment to determine the viability of the employer's workers' compensation affirmative defense. The trial court granted the employees' motion for partial summary judgment finding that exposure to mold and mold spores did not fall under the exclusive remedy provision of the LWCA. The employer thereafter appealed.

The Fourth Circuit affirmed the ruling of the trial court, finding that the employees' claims against their state employer for exposure to mold in the workplace fell outside the scope of the LWCA because those claims did not fall under the accident or occupational disease classification of the compensation scheme. In discussing whether exposure to mold and mold spores constituted an occupational disease within the meaning of the LWCA, the appellate court stated, "the test is whether exposure to mold and mold spores are 'conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease.' " Applying this test, the appellate court concluded as follows:

Injuries and illnesses resulting from mold exposure in a clerical job do not fall under the definition of La. R.S. 23:1031.1. The plaintiffs were hired as clerical staff. Contrary to defendant's assertions, we can find no basis in the statutory language or reasonable explanation as to why exposure to mold and mold spores could be considered 'characteristic of and peculiar to' clerical work. Thus, as the trial court found, plaintiffs do not fall into the second classification of those entitled to receive coverage that would bar delictual actions.

Ruffin , 946 So.2d at 700.

Relying on its decision in Ruffin, the Fourth circuit, in Watters v. Department of Social Services , supra , again concluded that state employees' claims for illnesses resulting from mold exposure in the workplace fell outside the scope of the LWCA.

This Court, in Mulder v. Jefferson Parish Hospital Service District #2 , 14-805 (La. App. 5 Cir. 3/25/15), 169 So.3d 606, also considered the nature of the work performed in determining whether the employee suffered an occupational disease within the meaning of the LWCA and concluded that she failed to show that her tendonitis was the result of the nature of the work performed as a rehabilitation nurse, even though part of her job included lifting patients. In Mulder , this Court discussed the importance of the nature of the work in making a determination as to whether the alleged illness constitutes an occupational disease and stated as follows:

The claimant in a workers' compensation action based on an occupational disease must establish by a preponderance of the evidence that there is a disability which is related to the employment-related disease. Vargas v. Daniell Battery Mfg. Co. , 93-1249 (La. App. 1 Cir. 5/20/94), 636 So.2d 1194, 1197. An occupational disease means only that the disease or illness is "due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease." La. R.S. 23:1031.1(B) ; see Coats v. American Tel. & Tel. Co. , 95-2670, p. 7 (La. 10/25/96), 681 So.2d 1243, 1247. The claimant must show that she contracted the disease during the course of her employment and that the disease was the result of the nature of the work performed. Vargas, supra .
Here, claimant was able to show only a possibility that her employment with East Jefferson contributed to her condition. Prior to the extension of workers' compensation coverage to include occupational disease, a worker's entitlement to compensation hinged on the occurrence of an "accident," which can only be established by the claimant's proof of an "identifiable precipitous event" that caused injury. While enlarging workers' compensation coverage to cases of occupational disease, La. R.S. 23:1031.1 retains the requirement that an employee establish that the disease arises from his work, i.e. , from "causes and conditions characteristic of and peculiar to the particular trade , occupation, process, or employment" in which the employee worked. Id. (Emphasis added ). The claimant must show that she was injured during the course of employment and that the injury was the result of the nature of her work performed. The causal link between a claimant's injury and her work-related duties must be established by a reasonable probability; the claimant here fails in her burden of proof upon a showing of only a possibility that the employment caused the injury or that other causes not related to the employment are just as likely to have caused the disease. Claimant here has failed to show that the alleged occupational disease was the result of the nature of the work performed.
Claimant cites no case where a rehabilitation nurse was granted workers' compensation benefits due to repetitive lifting of patients. Furthermore, claimant's medical expert notes his total lack of knowledge of any instance where a nurse's lifting patients constituted an occupational disease. See Picard v. Dynamic Offshore Contractors , 618 So.2d 1183 (La. App. 3 Cir. 1993) (court of appeal found that claimant, a structural fitter, failed to show tennis elbow as an occupational disease from his use of C-clamps where injury was not characteristic among others in his trade or occupation.).
Ms. Mulder was only able to show a possibility that her East Jefferson employment contributed to her condition. The "nature of the work" statutory requirement of occupational disease is not supported by the record of one unidentified nurse with tendonitis.

Mulder , 169 So.3d at 610-11

In Jackson v. Ware Youth Center , 41,830 (La. App. 2 Cir. 1/24/07), 948 So.2d 374, the Second Circuit also considered the employee's work-related duties in determining whether her medical problems could be characterized as an occupational disease within the meaning of the LWCA. In the Jackson case, the claimant, who worked as a security guard at the youth center, sought workers' compensation benefits, alleging that her medical problems were the result of her exposure to extreme cold at work. The workers' compensation judge found that the employee's medical problems did not meet the definition of an occupational disease and thereafter granted summary judgment in favor of the employer. In so ruling, the workers' compensation judge stated as follows:

In this case the claimant has contended she was diagnosed with intrastitial fibrosis and/or pneumonia. She also has noted for the record that she worked as a security officer. The court cannot find that pneumonia and/or intrastitial fibrosis is due to causes and conditions characteristic of or peculiar to being a security officer.

On appeal, the Second Circuit affirmed that judgment, agreeing with the workers' compensation judge that the employee's medical problems did not meet the definition of an occupational disease as set forth in La. R.S. 23:1031.1(B). Jackson , 948 So.2d at 375-76.

As evidenced by the foregoing discussion, appellate courts have regularly considered the employee's work-related duties in determining whether an illness constitutes an occupational disease within the meaning of the LWCA. On appeal, Mrs. Lyle insists that the analysis previously utilized by the courts, which focused on the employee's work-related duties, has been replaced with an analysis that focuses on causation. She specifically contends that the workers' compensation judge in this case committed legal error by relying on the two Fourth Circuit cases previously mentioned, Ruffin and Watters , which were implicitly overruled by the Louisiana Supreme Court in Arrant v. Graphic Packaging International, Inc. , supra . Ms. Lyle contends that under the Supreme Court's recent pronouncement in Arrant , causation is the central determinant of whether a particular claimant's illness is a compensable occupational disease, and that the workers' compensation judge erred in not reaching the issue of causation when ruling on Brock's motion for summary judgment.

In Arrant , the Louisiana Supreme Court was presented with the res nova issue of "whether gradual noise induced hearing loss caused by occupational exposure to hazardous noise levels is a personal injury by accident or an occupational disease, or both, under the Louisiana Workers' Compensation Act (hereinafter "LWCA"), thereby entitling the defendant employer to immunity from suits in tort under the exclusivity provisions of the LWCA." In Arrant , the plaintiff employees sought damages from their employer claiming that they suffered hearing losses as a result of their exposure to a hazardous level of noise during their employment at a paper mill, box plant, and carton plant. After considering the history and purpose of the LWCA, the Louisiana Supreme Court concluded that the noise-induced hearing loss fell squarely within the parameters of the LWCA, either as an accident or an occupational disease, and thus the employer was entitled to immunity from suits in tort under the LWCA. In finding that the plaintiffs' gradual noise-induced hearing loss was a result of their exposure to hazardous levels of noise in the course and scope of their employment and thus constituted an occupational disease within the meaning of the LWCA, the Louisiana Supreme Court stated as follows:

Furthermore, as the statute directs, we must look to whether plaintiffs' disease or illness "is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed." La.Rev.Stat. 23:1031.1(B). The legislature deliberately chose very broad and expansive words to determine whether a disease or illness is a compensable "occupational disease" under the Act. By definition, "[a]n occupational disease means only that disease or illness which is due to causes and conditions characteristic of and peculiar to the particular trade, occupation, process, or employment in which the employee is exposed to such disease." La. R.S. 23:1031.1(B). In other words, an occupational disease is one in which there is a demonstrated causal link between the particular disease or illness and the occupation. See O'Regan, supra .
Viewed in this light, it is clear that NIHL meets the statutory definition of an "occupational disease" under the Act. The court of appeal correctly found that a causal link between plaintiffs' hearing losses and their work-related duties was established by a reasonable probability by the plaintiffs' own testimony and that of their experts. As the trial court found, and the record evidence supports, the "occupational disease" was contracted during the course of employment and was the result of the nature of the employment. There is no requirement in the statute, as the plaintiffs suggest, that the nature of the disease or injury be unique to the particular trade or industry. Here, hazardous levels of industrial noise, which caused the plaintiffs' hearing loss, was a condition very characteristic of and peculiar to the particular employment of working in a paper mill or box plant, which the evidence demonstrated involves machinery and processes producing high levels of industrial noise. Additionally, as the court of appeal noted, expert testimony in the form of certified reports, depositions or direct examination in open court supported a finding that the hearing loss was an occupational disease caused by exposure to high levels of industrial noise at the facility. Thus, the court of appeal correctly concluded the evidence established the plaintiffs' hearing loss "is due to causes and conditions characteristic of and peculiar to" plaintiffs' particular trade, occupation, process or employment with the defendants. Arrant v. Graphic Packaging Intern., Inc. , 48,197at pp. 11-12 (La. App. 2 Cir. 9/25/13), 127 So.3d 924, 931.

Arrant , 169 So.3d at 309-310

Mrs. Lyle suggests that Arrant heralded a broad view of the term "occupational disease" that hinges on a causal connection between one's employment environment and one's illnesses, and thus expands and thereby eviscerates the narrow duties-based approach to La. R.S. 23:1031.1 that was previously favored by the courts. We have thoroughly reviewed Arrant and can find no language that supports Mrs. Lyle's interpretation. While acknowledging that there is no requirement in the statute that the nature of the disease or injury be unique to the particular trade or industry, the Louisiana Supreme Court did not abolish the requirement of a causal link between the employee's illness and work-related duties. As noted by this Court in Mulder , "[w]hile enlarging workers' compensation coverage to cases of occupational disease, La. R.S. 23:1031.1 retains the requirement that an employee establish that the disease arises from his work, i.e. , from 'causes and conditions characteristic of and peculiar to the particular trade , occupation, process, or employment' in which the employee worked." Mulder , 169 So.3d at 611. (emphasis in original)

Based on our review of the definition of "occupational disease" as set forth in the LWCA and the jurisprudence discussing that provision, including the Arrant case so heavily relied upon by Mrs. Lyle, as well as the evidence submitted at the hearing on the motion for summary judgment, we find no error in the ruling of the workers' compensation judge. We particularly note the deposition testimony of Mrs. Lyle's treating physician, Dr. Saketkoo, that sarcoidosis has nothing to do with a job classification. In her deposition, Dr. Saketkoo testified as follows:

Q. ... You understood that this woman had a very similar job to data processor; is that correct?
A. This is not about her job. It's not about what she did.
Q. Okay.
A. This is about the environment that she did her job in, okay.
Q. So the fact of what type of job she had or what her job classification was had nothing to do with her coming down with sarcoidosis ? It was the fact that where she was had this mold? Is that what you're saying?
A. High levels of mold, yeah ... And fungus.

Dr. Saketkoo further stated:

A. Well, again, I'm going to say this. It's not about the work she did. It's not about the fact that she worked in payroll. It's not about the fact that she was a typist. It's not about the fact that she dealt with data. It's about the thing that we all know is antigenic and the causation of sarcoid and the proliferation of sarcoid and causing it to do damage in the body and that's the culprit of fungus and mold that she was doing her job in, not to do with the fact that she was -- her fingers were hitting the keyboard.
Q. Have you ever had occasion to treat anybody else with sarcoidosis who did data entry or typing or accounting, stuff like that?
A. Oh, yeah. Yeah.
Q. And that would be because those people were likewise in an environment that had some of mold or what?
A. It could have been, you know, or it could have been we just don't know what the antigen for that person was because there was no clear evidence of exposure, you know, and sometimes we just don't look close to be quite honest.
Q. So the fact that there were doing the data entry or doing the typing or doing the accounting, that wasn't the trigger, if you will --
A. No.
Q. -- for them having sarcoidosis ?
A. Not, not by any stretch of my imagination.

In addition, Dr. Lutz similarly stated that sarcoidosis is not characteristic of and peculiar to the particular trade, occupation, or employment in which Mrs. Lyle was engaged.

Given this evidence, we conclude that there is no genuine issue of material fact that Mrs. Lyle's sarcoidosis did not arise from causes and conditions characteristic of and peculiar to her employment as a clerical worker, and therefore, her illness does not fit within the definition of occupational disease within the meaning of the LWCA. Given this determination, Brock is entitled to summary judgment as a matter of law.

CONCLUSION

Accordingly, for the reasons set forth herein, we affirm the judgment of the workers' compensation judge which granted Brock's motion for summary judgment and dismissed Mrs. Lyle's workers' compensation claim.

AFFIRMED

      Brock retained the services of a mold testing company, which performed testing of the offices in October of 2015 and January of 2016.

      In her brief, Mrs. Lyle asserts that a recent ruling by the Third Circuit in Duplechin v. St. Landry Parish School Board , 17-748 (La. App. 3 Cir. 2/7/18), 237 So.3d 1196, "has cemented the applicability of Arrant to cases in which a worker is seeking workers' compensation benefits due to employment-related sarcoidosis." We disagree. It appears that the Duplechin court focused on causation because that was the primary focus of the workers' compensation ruling. After referencing the Louisiana Supreme Court's explanation of an occupational disease in Arrant , the Duplechin court stated: "Notwithstanding any arguments regarding a link between the disease and the occupation that could exist in this case, the issue of causation of the claimant's alleged disability was the primary focus of the workers' compensation ruling." Id. at 1199.


author: GREMILLION, Judge.

text:
    Festus OGBEBOR, Individually and on behalf of his deceased wife, Mary Ogbebor v. LAFAYETTE GENERAL MEDICAL CENTER, et al.
    18-296
    Court of Appeal of Louisiana, Third Circuit.
    August 1, 2018
    Charles J. Boudreaux, Jr., Louis Simon II, Jones Walker LLP, 600 Jefferson, Suite 1600, P.O. Drawer 3408, Lafayette, LA 70502-3408, (337) 593-7600, ATTORNEYS FOR DEFENDANTS/APPLICANTS, Dr. Louis Salvaggio, Dr. Nick Cavros
    S. Douglas Busari, S. Douglas Busari & Associates, LLC, 506 East Green Street, Tallulah, LA 71282, (318) 574-2955, ATTORNEYS FOR PLAINTIFF/RESPONDENT, Festus Ogbebor, Individually and on behalf of his deceased wife, Mary Ogbebor
    Court composed of Shannon J. Gremillion, John E. Conery, and Van H. Kyzar, Judges.
   GREMILLION, Judge.

Defendants/Applicants, Dr. Louis A. Salvaggio and Dr. Nick G. Cavros (Applicants), seek supervisory review from the judgment of the district court granting a motion for new trial filed by Plaintiff, Festus Ogbebor, individually and on behalf of his deceased wife, Mary Ogbebor. For the reasons that follow, we grant the writ and make it peremptory.

FACTS AND PROCEDURAL POSTURE

On June 21, 2013, Mrs. Ogbebor presented to the emergency room of Lafayette General Medical Center (LGMC) in Lafayette with complaints of anterior chest discomfort with bilateral arm discomfort, shortness of breath, and sweating. Following an EKG and a chest x-ray, Dr. Salvaggio performed a procedure on Mrs. Ogbebor in the cardiac catheterization laboratory (cath lab) of LGMC. Later that same day, Mrs. Ogbebor was taken back to the cath lab at the direction of Dr. Cavros after she was found to have "a totally occluded first obtuse marginal, status post recent PCI of the vessel with drug[-]eluting stint [sic]." Dr. Cavros performed another procedure which included the placement of an aortic balloon pump. Dr. Cavros discharged Mrs. Ogbebor on July 2, 2013. On July 4, 2013, at 5:37 a.m., Mrs. Ogbebor returned to the LGMC emergency room with complaints of severe chest pain. The cath lab was not notified of her condition until 6:11 a.m. Mrs. Ogbebor passed away at 6:31 a.m.

Festus Ogbebor, Mrs. Ogbebor's husband, timely filed a request for review by a medical review panel regarding the care administered by Applicants. The medical review panel concluded that the evidence submitted in support of the claim did not show that Dr. Salvaggio or Dr. Cavros breached the applicable standards of care.

On July 6, 2016, Mr. Ogbebor filed suit against Applicants, LGMC, and Dr. Phillip Ralidis, asserting medical malpractice claims on behalf of Mrs. Ogbebor and himself arising from her death. Applicants answered Mr. Ogbebor's suit on July 26, 2017, and thereafter filed a motion for summary judgment on August 16, 2017. Mr. Ogbebor filed an opposition to the motion for summary judgment to which he attached the curriculum vitae of his expert, Dr. David Korn. Three days before the hearing on the motion for summary judgment, Mr. Ogbebor filed a letter prepared by Dr. Korn in which he opined that Applicants breached the standard of care applicable to Mrs. Ogbebor's symptoms and medical condition.

Applicants asserted in their motion that Mr. Ogbebor's claims against them should be dismissed because he did not have an expert witness to rebut the experts on the medical review panel. At the summary judgment hearing, counsel for Mr. Ogbebor argued that he did not have an affidavit from Dr. Korn because he did not believe the expert he initially retained could withstand a challenge of her credentials under Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). At the conclusion of the hearing, the trial court granted summary judgment dismissing Mr. Ogbebor's claims against Applicants because he had failed to produce an affidavit by Dr. Korn supporting his claims.

Mr. Ogbebor filed a motion for new trial, asserting that he had new evidence that warranted the grant of his motion as provided in La.Code Civ.P. art. 1972. At the hearing on the motion for new trial, Mr. Ogbebor produced an affidavit executed by Dr. Korn. Applicants argued that the affidavit was not new evidence because Mr. Ogbebor obtained and submitted a letter opinion by Dr. Korn before the hearing on the motion for summary judgment. Mr. Ogbebor argued to the trial court that he did not get an affidavit from Dr. Korn, because there "was a national disaster," "so much of [a] national event, everyone in the country knows about it." The trial court granted the new trial, finding Dr. Korn's affidavit "to be new evidence and that it was beyond [Mr. Ogbebor's] control ... to provide that."

ANALYSIS AND DISCUSSION

"Our jurisprudence clearly establishes that the grant of a motion for new trial is a not a final, appealable judgment, but rather, an interlocutory judgment[.]" McGinn v. Crescent City Connection Bridge Auth. , 15-165, p. 4 (La.App. 4 Cir. 7/22/15), 174 So.3d 145, 148. See also , La.Code Civ.P. arts. 1841, 1915. Generally, the proper procedural vehicle for the review of an interlocutory judgment is an application for supervisory writs. McGinn , 174 So.3d 145. The reversal of the trial court's grant of a new trial would result in dismissal of Mr. Ogbebor's claims against Applicants.

A plaintiff's burden of proof in a medical malpractice action is three-fold. He must present evidence establishing the applicable standard of care, a breach of the standard of care, and a causal connection between the breach and the injury. La.R.S. 9:2794 ; Pfiffner v. Correa , 94-924, 94-963, 94-992 (La. 10/17/94), 643 So.2d 1228 . As a general rule, expert testimony is required to establish the applicable standard of care and whether that standard was breached, unless the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony. Samaha v. Rau , 07-1726 (La. 2/26/08), 977 So.2d 880 (citing Pfiffner , 643 So.2d 1228 ).

In their motion for summary judgment, Applicants asserted that the opinions of the medical review panel established that Mr. Ogbebor could not meet his burden of proving the three elements of his malpractice claim without expert medical testimony. Applicants further asserted that although Mr. Ogbebor responded to year-old discovery requests in September 2017, he did not identify an expert or submit an expert opinion.

The hearing on the motion for summary judgment was held November 20, 2017. The trial court determined that because Mr. Ogbebor filed Dr. Korn's letter less than fifteen days before the hearing, it was not timely under La.Code Civ.P. art. 966(B)(2). The trial court further determined that Dr. Korn's letter opinion did not satisfy the evidentiary requirements of La.Code Civ.P. art. 966(A)(4), which provides, "The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions." Therefore, the trial court granted summary judgment in favor of Applicants and dismissed Mr. Ogbebor's claims against them.

Mr. Ogbebor filed a motion for new trial based on La.Code Civ.P. art. 1972's provision that a new trial shall be granted when "evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial" is discovered "since the trial." La.Code Civ.P. art. 1972(2). Additionally, a "new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law." La.Code Civ.P. art. 1973. Mr. Ogbebor's motion for new trial asserted in argument that the basis for his motion was his contention that a hurricane prevented him from timely obtaining and filing an affidavit by Dr. Korn. The trial court acknowledged that the record established that Mr. Ogbebor retained and identified Dr. Korn as his expert prior to the hearing on Applicants' motion for summary judgment but explained that Mr. Ogbebor also had to show why he had not filed an affidavit before the hearing on the motion for summary judgment. Counsel for Mr. Ogbebor responded:

[I]t was a national disaster on country [sic] ... Everyone was quite aware of that, Judge. That was the reason why we ... didn't get the affidavit. We could have done it, you know, got the affidavit if, clearly, it was thought that, you know, that it was required, but because it was so much of [a] national event, everyone in the country knows about it right after the one in Texas, so we are sure the Court was quite aware of that, Your Honor.

The fifth circuit addressed the requirements of a successful motion for new trial on the basis of new evidence in Burns v. Sedgwick Claims Management Services , 14-421, p. 11 (La.App. 5 Cir. 11/25/14), 165 So.3d 147, 155 (citations omitted), where it explained:

The moving party bears the burden of proving that there are adequate grounds for a new trial. When a claim is made that a new trial is warranted due to newly discovered evidence, there must be a clear showing, not only that the evidence was discovered after the conclusion of the proceedings, but that every reasonable and diligent effort was made to procure it before the proceedings.

See also, Holloway Drilling Equip., Inc. v. Bodin , 12-355 (La.App. 3 Cir. 11/7/12), 107 So.3d 699. The trial court's grant of a motion for new trial is reviewed under the abuse of discretion standard of review. Id.

Mr. Ogbebor acknowledged that his expert witness was not newly-discovered evidence but argued that a hurricane prevented him from obtaining an affidavit from Dr. Korn and filing it as required by La.Code Civ.P. art. 966. He did not, however, present any evidence supporting this claim. Mr. Ogbebor did not identify the hurricane/national disaster that prevented him from obtaining Dr. Korn's affidavit nor describe how the hurricane/national disaster prevented him from obtaining the affidavit. The existence of a hurricane/national disaster alone does not satisfy Mr. Ogbebor's burden of proof. Mr. Ogbebor did not establish that a hurricane/national disaster prevented Dr. Korn from preparing, executing, and forwarding an affidavit to him before the hearing on the motion for summary judgment. Indeed, he admitted that "we could have ... got [sic] the affidavit if [we thought] that it was required," but then implied that he thought the requirement would not apply because of the "national event."

Mr. Ogbebor obtained an affidavit from Dr. Korn for the hearing on his motion for new trial that addressed the merits of his claims against Applicants. Nonetheless, the transcript shows that Dr. Korn did not explain in his affidavit that a hurricane/national disaster prevented him from providing Mr. Ogbebor an affidavit before the hearing on the motion for summary judgment. Accordingly, Mr. Ogbebor did not establish that Dr. Korn's affidavit was newly-discovered evidence or that a hurricane/national disaster excused his failure to timely obtain an affidavit from Dr. Korn.

For these reasons, we find that the trial court abused its discretion in granting Mr. Ogbebor's motion for new trial. Applicants' writ is granted, the trial court's ruling reversed, and the judgment granting summary judgment in favor of Applicants is reinstated. All costs of this proceeding are taxed to Plaintiff/Respondent, Festus Ogbebor, individually and on behalf of his deceased wife, Mary Ogbebor.

WRIT GRANTED AND MADE PEREMPTORY.

      Additional defendants, LGMC and Dr. Philip Ralidis, were named in the medical panel review request and the suit later filed against Dr. Salvaggio and Dr. Cavros. This writ application does not involve LGMC or Dr. Ralidis.