Filed: Apr. 26, 2013
Latest Update: Apr. 26, 2013
Summary: NOT DESIGNATED FOR PUBLICATION PETTIGREW, J. In this case, plaintiff seeks review of the trial court's judgment sustaining defendant's exception raising the objection of prematurity and dismissing, without prejudice, plaintiff's suit against defendant. For the reasons that follow, we affirm in part, reverse in part, and remand. FACTS AND PROCEDURAL HISTORY At all times pertinent hereto, plaintiff, Dolores Dyess, was working as an administrative assistant under the employ of defendant, The B
Summary: NOT DESIGNATED FOR PUBLICATION PETTIGREW, J. In this case, plaintiff seeks review of the trial court's judgment sustaining defendant's exception raising the objection of prematurity and dismissing, without prejudice, plaintiff's suit against defendant. For the reasons that follow, we affirm in part, reverse in part, and remand. FACTS AND PROCEDURAL HISTORY At all times pertinent hereto, plaintiff, Dolores Dyess, was working as an administrative assistant under the employ of defendant, The Bo..
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NOT DESIGNATED FOR PUBLICATION
PETTIGREW, J.
In this case, plaintiff seeks review of the trial court's judgment sustaining defendant's exception raising the objection of prematurity and dismissing, without prejudice, plaintiff's suit against defendant. For the reasons that follow, we affirm in part, reverse in part, and remand.
FACTS AND PROCEDURAL HISTORY
At all times pertinent hereto, plaintiff, Dolores Dyess, was working as an administrative assistant under the employ of defendant, The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College1 ("LSU"). Defendant, Kenneth Damann, was a tenured professor employed by LSU at the time. According to the record, on January 25, 2011, Ms. Dyess was delivering paperwork to another employee's office when Mr. Damann called her into his office. Ms. Dyess alleged that upon entering his office, Mr. Damann slapped her with his open hand on the left side of her buttocks. On October 5, 2011, Ms. Dyess filed a petition for damages against Mr. Damann and LSU, alleging an unwanted touching by Mr. Damann, sexual harassment, and intimidation. Ms. Dyess sought damages including pain and suffering, mental anguish, and loss of enjoyment of life.
In response to said petition, Mr. Damann filed an exception raising the objection of prematurity.2 Mr. Damann alleged that Ms. Dyess' claim was premature because she did not provide him with pre-suit written notice at least thirty days before filing suit as required by La. R.S. 23:303(C).3 The matter proceeded to hearing on March 26, 2012, at which time the trial court heard testimony from Mr. Damann. After considering the record and the applicable law, the trial court made the following ruling from the bench:
The statute is very clear. [Louisiana Revised Statutes] 23:303(C) says, a plaintiff who believes he or she has been discriminated against or intends to pursue court action shall give the person who has allegedly discriminated written notice of this fact at least thirty days before initiating court action and shall detail the alleged discrimination, and both parties shall make a good faith effort to resolve the dispute prior to initiating court action. The letter that purports to be that notice does not comply with the statute. . . . The failure to comply with the statute is fatal. It is, and I'm going to grant the exception of prematurity and dismiss the matter without prejudice.
In a judgment signed May 15, 2012, the trial court dismissed Ms. Dyess' suit against Mr. Damann, without prejudice.4 It is from this judgment that Ms. Dyess has appealed, arguing the trial court erred in ruling that her suit was a discrimination suit under the Louisiana Employment Discrimination Law ("LEDL"), La. R.S. 23:301, et seq., thereby invoking the notice requirements under La. R.S. 23:303(C), and dismissing Mr. Damann from the suit.5
DISCUSSION
Louisiana Code of Civil Procedure article 926(A)(1) provides for the dilatory exception raising the objection of prematurity. The objection is designed to retard the progress of the action rather than to defeat it. La. Code Civ. P. art. 923. A suit is premature if it is brought before the right to enforce the claim sued on has accrued. La. Code Civ. P. art. 423. The objection of prematurity raises the issue of whether the judicial cause of action has yet come into existence because some prerequisite condition has not been fulfilled. The viability of the exception is determined by the facts existing at the time the lawsuit is filed. Mathies v. Blanchard, 2006-0559, p. 3 (La. App. 1 Cir. 2/21/07), 959 So.2d 986, 988. The standard of review of a judgment sustaining a dilatory exception raising the objection of prematurity is that of manifest error. Pinegar v. Harris, 2008-1112, p. 10 (La. App. 1 Cir. 6/12/09), 20 So.3d 1081, 1088.
On appeal, Ms. Dyess argues that the notice requirements of La. R.S. 23:303(C) are inapplicable to her suit because the provisions of the LEDL only apply to complaints between employees and employers, and Mr. Damann does not qualify as an employer. Ms. Dyess further points out that in order to form the basis of a discrimination suit under LEDL, an employee must allege some tangible employment action that forms the basis of the suit. See La. R.S. 23:332.6 Ms. Dyess asserts that because she and Mr. Damann were co-workers, the notice provisions of La. R.S. 23:303(C) cannot be applicable to her suit against Mr. Damann. Moreover, Ms. Dyess asserts that she has not alleged any acts of sexual discrimination against Mr. Damann in her petition for damages. Rather, Ms. Dyess maintains that the only allegations made against Mr. Damann were for unwanted touching and intimidation.7
Based on our review of the record before us and the applicable law and jurisprudence, we find no error in the trial court's dismissal of that portion of Ms. Dyess' suit against Mr. Damann for sexual discrimination. However, the trial court was manifestly erroneous in dismissing Ms. Dyess' intentional tort claims against Mr. Damann. Thus, we reverse the trial court's judgment insofar as it dismisses Ms. Dyess' claims against Mr. Damann for unwanted touching and intimidation and remand the matter for further proceedings consistent with this opinion.
CONCLUSION
For the above and foregoing reasons, we affirm the May 15, 2012 judgment insofar as it dismissed Ms. Dyess' claim for sexual discrimination against Mr. Damann. We reverse the May 15, 2012 judgment of the trial court insofar as it dismissed Ms. Dyess' intentional tort claims against Mr. Damann and remand the matter for further proceedings consistent with this opinion. All costs associated with this appeal are assessed equally between plaintiff, Dolores Dyess, and defendant, Kenneth Damann.
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
