GUIDRY, J.
Defendant-appellant, the Board of Supervisors for the University of Louisiana System (Board of Supervisors), appeals the trial court's judgment in favor of plaintiff-appellee, James Robinson, awarding damages in accordance with a jury's verdict finding that the University of Louisiana at Lafayette Police Department (ULLPD) discriminated against Robinson
In 1971, Robinson was hired to work in security at the University of Louisiana at Lafayette (ULL).
In 2002, Chief Sturm left ULLPD to work elsewhere. During that time, others served as Chief, including Robinson who held the position of Interim Chief of ULLPD on three separate occasions. Chief Sturm returned to ULLPD as chief of police in 2009. In October/November of 2010, under Chief Sturm's leadership, ULLPD underwent an organizational and policing policy change. In conformity with the State's Civil Service requirements, the former ULLPD offices were modified. Most employees received an increase in salary and increase in rank, including Robinson. Effective October 27, 2010, continuing as the second-in-command, Robinson, who was sixty-six years old, began service at ULLPD as a Police Major A. Chief Sturm was forty-one years old when the reorganization took place. It is undisputed that concomitantly with the Civil Service reorganization, ULLPD went from a community-based policing operation to an intelligence-led policing operation.
Additionally, as part of this organizational and policy change, Robinson was to transfer custodian duties of the evidence room to Officer Billy Abrams. In November 2010, the building that housed the ULLPD evidence room was scheduled for significant renovations and, therefore, all the evidence and property had to be moved from one facility to another. In December 2010, Robinson was directed by Chief Sturm to perform an evidence audit of the contents of the evidence room prior to the transfer of custodial duties to Officer Abrams and prior to the transfer of evidence to the new facility. Robinson admittedly did not know how to perform an evidence audit and selected Officer Daniel Mendoza to assist him with the transfer.
By early 2011, all of the evidence and other secured property were transferred to a new building. In March 2011, Robinson received his first ever unsatisfactory evaluation, and the evidence custodian duties for which he had been responsible since 1999 were ultimately turned over to Officer Abrams. On March 15, 2011, Chief Sturm recommended disciplinary action against the 39-year ULLPD Major for failing to follow direct orders related to the
Thereafter, on May 9, 2011, Robinson executed a form certifying his intent to retire effective July 15, 2011. After Robinson indicated his intent to retire, the proposed disciplinary action was rescinded.
In the remaining months of his service, Robinson was subjected to an internal affairs investigation over alleged missing evidence that was subsequently located. He was also reassigned to patrol the New Iberia Research Center (NIRC), where the university houses primates. It is undisputed that this assignment was not in conformity with his job description as a Police Major A, although Robinson continued to collect the same salary. Robinson subsequently retired on July 15, 2011.
On August 20, 2012, Robinson filed a petition for damages, averring that the Board of Supervisors was responsible for age-based employment discrimination by ULLPD in violation of both federal and state law.
Both the federal Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, and Louisiana's Age Discrimination Employment Act (LADEA), La. R.S. 23:311-314, make it unlawful for an employer to discharge any individual or otherwise discriminate against any individual with respect to his compensation or his terms, conditions, or privileges of employment because of age. 29 U.S.C. § 623; La. R.S. 23:312(A)(1). Because Louisiana's age discrimination statute is nearly identical to the federal statute, Louisiana courts have traditionally used federal case law for guidance.
Under both federal and state law, in the absence of direct proof of discrimination, the plaintiff in an age discrimination case must follow the three-step burden-shifting framework laid out in
If the plaintiff establishes a prima facie case, the defendant must then articulate a legitimate, non-discriminatory reason for its action. The defendant's burden, in rebutting a prima facie case, is one of production, not persuasion.
If the defendant articulates such a reason, then the burden shifts back to the plaintiff to show by a preponderance of the evidence that the defendant's reason is mere pretext for discrimination.
The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff, who must prove, by a preponderance of the evidence, that age was the "but-for" cause of the challenged adverse employment action.
As depicted above, the determination of whether a plaintiff has established age-based discrimination is necessarily a fact-intensive inquiry. It is well-settled that a court of appeal may not set aside a jury's finding of fact unless it is clearly wrong or manifestly erroneous.
Further, when findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the trier of fact's findings; for only the factfinder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said.
After reviewing the record in the instant case, we find no error in the jury's determination that Robinson established a prima face case of age discrimination. It is undisputed that at the time of his retirement, Robinson was sixty-six years of age and therefore, within the protected class.
Additionally, the record demonstrates that at the time of his retirement, Robinson had worked for ULLPD for forty-years. During that time, he was promoted to Captain and to Major, where he served as second-in-command to the Chief. Robinson also served as the sole custodian in charge of the ULLPD evidence room for approximately eleven years. Robinson had consistently received outstanding job performance evaluations, and according to Lieutenant Michelle Broussard, he was the "go to" person at ULLPD. With regard to the evidence room, Lieutenant Michael Louviere testified that Robinson had attended two certifying classes for evidence training, and that during his tenure as evidence custodian, ULLPD never had a problem producing evidence. Thus, given Robinson's tenure, experience, and positive performance evaluations with ULLPD, the record supports that he was qualified for the position of Major.
Further, Robinson presented evidence demonstrating that he was constructively discharged from his position. In order to state a discrimination claim based on constructive discharge, the plaintiff must establish that the employer created working conditions so intolerable that a reasonable employee would feel compelled to resign.
As noted above, Chief Sturm initiated organizational changes at ULLPD in late 2010. As part of this reorganization, Robinson's classification changed from Captain to Major. However, his rank as second-in-command remained unchanged. Robinson testified, and Chief Sturm acknowledged, that prior to the reorganization, Robinson had an unblemished work history. However, after the reorganization, Robinson received several verbal and written reprimands from Chief Sturm for failure to perform tasks that Robinson had admitted not knowing how to perform and for which, according to Robinson, he was denied assistance in completing. Rather than provide Robinson with assistance in completing an audit that had never been performed by anyone at ULLPD, Robinson and Officer Mendoza stated that Chief Sturm yelled at Robinson, told him he was incompetent, and called him names.
Sergeant Johnson also stated that beginning in January 2011, Chief Sturm started relieving Robinson of his duties. First, Robinson was relieved of his duty as patrol commander in January 2011, and Sergeant Johnson was told not to report anything to Robinson anymore. Then, as acknowledged by Chief Sturm, by the time the evidence room transfer was completed in March 2011, Robinson had been relieved of his duties as evidence custodian. Shortly thereafter, Robinson was relieved of his remaining duties. According to Robinson, he was forced to sign retirement papers on May 9, 2011, due the foregoing actions by Chief Sturm by not only eliminating his job responsibilities and his role in ULLPD but also in engaging in a pattern of harassment regarding the transfer of evidence.
Finally, Robinson produced evidence that he was replaced by someone younger. As noted above, Robinson was sixty-six years of age when he retired from ULLPD. Captain Zerangue, who was approximately forty years old at the time, assumed Robinson's position as Major when Robinson retired. Additionally, Chief Sturm testified that other members of his command staff were in their early to mid-forties, with one employee, Lieutenant Lavergne in his late forties. Age differences of ten or more years have generally been held to be sufficiently substantial to meet the requirement of the fourth prong of an age discrimination prima facie case.
At trial, the defendant asserted that 1) there was no adverse employment action, i.e. no constructive discharge, because Robinson voluntarily chose to retire and 2) even if there was an adverse employment action, it was not because of Robinson's age but was because of his continued insubordination.
Charlene Hamilton, Human Resources Manager for ULL, stated that during a March 2011 meeting with Robinson regarding his proposed suspension, Robinson told her that he was going to retire effective July 15, 2011. According to Hamilton, it was based upon this assertion that the proposed disciplinary action was subsequently rescinded. Furthermore, Hamilton stated that Robinson had told her several times before the March 2011 meeting that he was contemplating retirement, because he was frustrated with some of his duties. Lieutenant Louviere also stated that Robinson had said for years that he was planning on retiring.
Chief Sturm also testified at trial, stating that he promoted Robinson twice, once in 2002 to Captain and once in 2010 to Major. According to Chief Sturm, while the promotion came about as a result of reorganization in ULLPD so as to be in line with state civil service requirements, he could have chosen anyone else for the position of Major, including advertising
According to Chief Sturm, it was at this time that things began to change. Robinson had selected Officer Mendoza to assist him with the transfer of evidence to the new location. Chief Sturm stated that shortly thereafter, Officer Mendoza expressed concern to him that Robinson was going to throw away all of the evidence except for guns, drugs, and money. Based on this conversation with Officer Mendoza, Chief Sturm had a discussion with Robinson, wherein he discussed the procedure to be followed in transferring evidence to the new location. Chief Sturm followed up this discussion with an email dated December 14, 2010, detailing the procedure to be followed in conducting an audit of all of the evidence and in transferring the evidence to the new location. Particularly, Chief Sturm directed that Robinson perform the detailed audit as instructed prior to the transfer of any evidence to the new location, and that he acknowledge receipt of the email and provide him with updates on the project's progress in writing. When Robinson failed to respond to the Chief's email as requested, Chief Sturm sent a written reprimand to Robinson on December 15, 2010, for Robinson's failure to follow directives.
Thereafter, on February 2, 2011, Chief Sturm again forwarded his December 14, 2010 email to Robinson, noting that as of that date, Robinson had still not followed direction nor taken charge of the transfer of evidence. On March 1, 2011, Chief Sturm sent another letter to Robinson, detailing Robinson's insubordination for failing to begin the audit and transfer process after being given a direct order. Robinson was also, at that time, relieved of his evidence room duties and was warned that if he failed to have new locks installed and obtain new alarm codes for the evidence room, he would be met with harsh discipline. Despite these repeated requests and warning, Chief Sturm stated that Robinson still failed to complete the task assigned. Consequently, on March 15, 2011, Chief Sturm wrote a letter to the Vice President for Student Affairs at ULL requesting a five-day suspension of Robinson for his failure to follow through on direct orders given by Chief Sturm on December 14, 2010, and March 1, 2011, and his repeated insubordination. According to Chief Sturm, Robinson had failed to do what he had been asked since December 2010, and the action taken against Robinson was an effort to improve his behavior.
Chief Sturm stated that ultimately, no action was ever taken against Robinson because he indicted his intent to retire in a March 2011 meeting with Hamilton. Following Robinson's completion of retirement paperwork on May 9, 2011, Chief Sturm stated that he initiated an internal affairs investigation on May 12, 2011, after discovering that Robinson was in possession of evidence after being relieved of that responsibility, that he was improperly
Thereafter, Chief Sturm stated that he transferred Robinson to NIRC in June 2011, because he needed an administrative position there. Despite the transfer, Robinson retained the same rank and pay. Chief Sturm stated that there are other veteran/senior officers working at NIRC, and the transfer was not intended as a punishment.
Robinson asserts that the defendant's proffered legitimate, non-discriminatory reasons were merely pretextual for several reasons. First, with regard to the voluntary nature of his retirement, Robinson stated that while he spoke with Hamilton in March 2011 and inquired as to whether he had enough years to retire, he did not indicate to her at that time that he wanted to retire. Rather, according to Robinson, he had planned on working for at least three more years due to recent family financial issues. Lieutenant Broussard also stated that she was aware that Robinson planned on working for several more years. However, due to the progressive elimination of job responsibilities, harassment, and exclusion of Robinson by Chief Sturm as detailed above, Robinson felt he that he was forced to retire as soon as he had his forty years on July 15, 2011.
Further, with regard to the defendant's argument that any adverse employment action was not because of Robinson's age but was because of his insubordination, defendant argued that because Chief Sturm had recently promoted Robinson, he would not turn around and take adverse action against him because of his age. However, contrary to defendant's assertion, Robinson presented evidence that Robinson's promotion to Major was not so much based on merit or choice by Chief Sturm but was the result of a department wide reorganization at ULLPD to conform with the state civil service requirements. As such, the reallocation was not particular to Robinson but was applicable to all employees within ULLPD, each receiving an increase in rank and pay as part of the reorganization. Further, while the position of Major may have been created by the reorganization, Robinson's status as second-in-command and, according to Robinson, general job responsibilities remained the same.
Additionally, with regard to the issue of auditing and transfer of evidence, Robinson presented contradictory evidence as to what prompted the request for the detailed audit procedure, the reasonableness thereof, and whether such request and/or criticism was an effort to mandate compliance with departmental policy or an effort to build a file on Robinson and force him to leave ULLPD. Contrary to Chief Sturm's assertion, Sergeant Mendoza testified that he did not tell Chief Sturm that Robinson was going to throw away evidence. Rather, Sergeant Mendoza stated that he expressed his concern to Chief Sturm that some evidence was missing from bags and that he did not want to be held accountable for missing evidence or held responsible for the condition of the evidence room.
Further, Chief Sturm acknowledged in his testimony that he was aware of the deplorable condition of the evidence room, where paint was peeling off the walls and evidence and paper were strewn everywhere. Additionally, the testimony at trial indicated that the presence of rats in the evidence room, who ate through evidence bags and sometimes ate evidence, was widely known by officers at ULLPD. Chief Sturm acknowledged that despite this condition,
Following Chief Sturm's email to Robinson on December 14, 2010, directing Robinson to perform a detailed audit of the evidence room contents and to email confirmation of the request and status updates, Robinson stated that he went to speak with Chief Sturm. Robinson stated that he explained to Chief Sturm that he was having problems with his email and that he did not know how to perform the audit as requested, and he also asked for assistance. Despite the fact that no one at ULLPD had been asked to perform or had performed such an evidence audit, Robinson stated Chief Sturm responded by just looking at him, raising his voice, and denying any request for training or assistance. Furthermore, Robinson stated that Chief Sturm refused requests for equipment to facilitate the transfer of evidence.
Additionally, despite Chief Sturm's timetable and directive in December 2010 requiring that no evidence be moved to the new location prior to completion of the audit, Captain Zerangue testified that he helped Officer Abrams transfer the evidence from the old evidence room to its new location in December 2010, stating that they had to quickly get the evidence out of the old evidence room due to construction in the building and that they moved the evidence to the new facility in one day. Additionally, Captain Zerangue stated that the auditing process had taken in excess of two years to complete and was still ongoing at the time of trial. Further, Officer Mendoza and Captain Zerangue also stated that at the time the evidence was moved in December 2010, they, along with Officer Abrams and several student officers, were in charge of the move and that Robinson had been already been relieved of his evidence custodian duties.
Finally, with regard to the internal affairs investigation and the transfer of Robinson to NIRC, both of which occurred after Robinson elected to retire, Lieutenant Louviere testified that during the course of the investigation, he remembered that he and Robinson had previously returned the alleged "missing" iPhone to its owner. Further, despite Chief Sturm's assertion that Robinson's transfer to NIRC was not intended as a punishment, Lieutenant Broussard, Officer Mendoza, and Sergeant Johnson stated they, as well as other lower ranking officers, perceived the transfer as a punishment.
After viewing the record in its entirety, we find that the jury had conflicting evidence before it and apparently did not find credible defendant's explanation that Robinson voluntarily retired or that any adverse employment action taken against him was due to his insubordination. Accordingly, because the jury, with its ability to listen to live testimony, was in a better position to judge the credibility of the witnesses and the accounts of the events, we will not second guess their rejection of the defendant's proffered explanation.
Further, finding no error in the jury's rejection of defendant's proffered explanation, and considering the evidence offered by Robinson in support of his prima facie case, we find that a rational factfinder could conclude that the action was discriminatory and therefore, find no error in the jury's inference of discrimination by ULLPD on the basis of age.
For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed to the Board of
Chutz, dissents and assigns reasons.
CHUTZ, J., dissenting.
I respectfully dissent with the majority's opinion in this case. The evidence was simply insufficient to support the jury's conclusion of liability under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-634, or the Louisiana's Age Discrimination Employment Act (LADEA), La. R.S. 23:311-314; or the amount of its award of damages to plaintiff, James Robinson.
Under the ADEA or the LADEA, Robinson was first required to establish a prima facie case of age discrimination. Initially. I question whether the record contains any competent evidence to support a finding that Robinson's termination was involuntary, which is among the requisite elements of his initial prima facie burden.
In concluding there was no manifest error with an implicit finding by the jury that Robinson established a prima facie showing of an involuntary termination, the majority relies only on Robinson's self-serving testimony that he was forced to resign, despite the fact that he failed to show he was demoted; suffered a reduction in salary; was offered either an early retirement or a continuation of employment on terms less favorable than his former status.
Even assuming arguendo that the jury was not manifestly erroneous and, therefore, that Robinson showed his initial prima facie case of age discrimination, the burden would have then shifted to the Board of Supervisors for the University of Louisiana System (Board of Supervisors) to articulate a legitimate, nondiscriminatory reason for the conduct of the University of Louisiana at Lafayette Police Department (ULLPD).
The record reflects that ULLPD had such a reason: ULLPD expected Robinson to change his manner of performing his job with both his promotion to Major and ULLPD's shift from community policing to intelligence-led policing, and Robinson failed to meet ULLPD Chief Joey Sturm's expectations. It was thereafter incumbent on Robinson to establish ULLPD's proffered reason was merely
While the jury may have rejected the proffered reason offered by the Board of Supervisors, even when the employer's proffered reason is unpersuasive, or obviously contrived, it does not necessarily establish that the plaintiff's assertion of age discrimination is correct.
Robinson urges that the jury's implicit determination of age discrimination is supported by evidence of age-based comments, disparate treatment, and the building of a disciplinary file against him by Chief Sturm. But a close examination of the evidence and law relative to each of these bases does not support this conclusion by the jury.
In order for age-based comments to demonstrate discrimination, Robinson must have proven it was the decision-makers who stated the discriminatory comments that led to an involuntary termination.
To show disparate treatment, Robinson had to introduce evidence showing that ULLPD gave preferential treatment to younger employees under "nearly identical" circumstances to Robinson's.
While it is evident the jury believed that Chief Sturm unfairly treated Robinson, that determination is insufficient to support the conclusion that ULLPD's motive in building a file against him was based on age. An inability to adapt to a changing work environment is not inherently age-based conduct so as to support a finding of a discriminatory motive based on age. Robinson failed to provide evidence establishing a nexus between his allegation of file building by ULLPD and his age so as to support a finding by the jury of age discrimination.
The United States Supreme Court has held that after the presentation of all the evidence in an ADEA claim, the overall evidence ultimately must be sufficient for a jury to conclude that age discrimination — and age discrimination alone — was the true reason for the employment decision.
Lastly, because there is a lack of a reasonable basis to support the amount of damages, I believe the majority errs in affirming the jury's award of $367,918.00. Robinson did not assert entitlement to a general damage award. Likewise, he neither claimed damages for mental anguish
For these reasons, in my view, the law and evidence are insufficient to support Robinson's claim of unlawful discrimination based upon age. Thus, I disagree with the majority's determination of liability. I further disagree with the majority decision insofar as it affirms the amount of damages since, even assuming that the evidence was sufficient to support plaintiff's claim, damages ought to have been limited to Robinson's lost wages. Accordingly, I respectfully dissent.