Opinion
2022 CA 0930
04-14-2023
MARCUS SION v. MCLANE FOODSERVICE, INC.
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 687789, Section 26 The Honorable Richard "Chip" Moore III, Judge Presiding
Kimberly M. Fanshier Ravi K. Sangisetty Whitney Wilson New Orleans, Louisiana Counsel for Plaintiff/Appellant, Marcus Sion
Monique G. Doucette Claire R. Pitre New Orleans, Louisiana Counsel for Defendant/Appellee, McLane Foodservice, Inc.
BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ.
MILLER, J.
This matter is before us on appeal by plaintiff, Marcus Sion, from a judgment of the district court granting summary judgment in favor of defendant, McLane Foodservice, Inc., and dismissing plaintiffs claims with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff, a former employee of McLane Foodservice, Inc. ("McLane"), filed a petition for damages against McLane claiming that he suffered an accident causing injury, while in the course and scope of his employment with McLane, on March 22, 2018. According to plaintiff, he filed a workers' compensation claim in connection with his injury and alternated from light-duty to full-duty work based on the amount of pain he suffered from his injury.
In July of 2018, plaintiff was placed on "re-employability assignment" earning his full-duty hourly rate, but was only allowed to work twenty-seven hours per week. Plaintiff contended that after one month of working at the reemployability assignment, his wages were reduced from $30.00 per hour to $15.00 per hour, which was proximate in time to his communication to McLane that his physician had recommended additional treatment to relieve his pain and that he should take a leave of absence for two to three weeks. Plaintiff further claimed that based on the belief that his supervisor and McLane's workers' compensation insurance provider were aware of his leave, and that all communication should go through his attorney handling his workers' compensation claim, he "stopped working" on or about August 21, 2018.
According to plaintiff, he then received a letter from McLane dated September 14, 2018, advising that his employment was terminated effective that date based on his failure to report to work since August 17, 2018, or to communicate with McLane about his employment status. Plaintiff averred that his termination was proximate in time with his claim for workers' compensation benefits such that his discharge was retaliatory in violation of La. R.S. 23:1361(C), thus entitling him to an award of civil penalties, attorney's fees, and costs.
McLane answered the petition and asserted various affirmative defenses. McLane then filed a motion for summary judgment seeking dismissal of plaintiff s claims with prejudice on the basis that his claim was prescribed. McLane contended that plaintiffs claim for retaliatory discharge expired one year from the date of his termination and although plaintiff fax-filed a petition on September 11, 2019, his original petition was not received and filed by the clerk of court for the district court until September 24, 2019. McLane alternatively argued that plaintiffs claims should be dismissed because plaintiff cannot meet an essential element of his retaliation claim under La. R.S. 23:1361(C), i.e., that he was terminated for asserting a claim for workers' compensation benefits.
In his opposition to McLane's motion for summary judgment, plaintiff conceded that his original petition was not received until outside of the one-year prescriptive period. However, plaintiff contended that his disputed claim for compensation filed with the Office of Workers' Compensation ("OWC") on January 17, 2019, interrupted the prescriptive period. Plaintiff further averred that he could present competent evidence to establish that he was terminated for asserting a claim for benefits under the Louisiana Workers' Compensation statute.
After McLane filed its reply memorandum, the motion was heard by the trial court on January 7, 2022. At the conclusion of the hearing, the district court found that the matter was prescribed on its face. The court further found that plaintiff s filing of the disputed claim for compensation in January of 2019 failed to interrupt the prescriptive period where plaintiff failed to allege therein "anything about" wrongful termination or otherwise put his employer on notice that wrongful discharge was a potential claim concerning his previous termination in September of 2018. The district court thus held that "because there was no mention of a wrongful termination claim in the filing of the worker's compensation case ... this matter is prescribed and summary judgment is granted."
On January 18, 2022, the district court signed a judgment granting McLane's motion for summary judgment and dismissing plaintiffs claims with prejudice. Plaintiff now appeals from that judgment contending that the district court erred in granting McLane's motion for summary judgment on the basis of prescription.
DISCUSSION
The summary judgment procedure is expressly favored in the law and is designed to secure the just, speedy, and inexpensive determination of non-domestic civil actions. La. C.C.P. art. 966(A)(2). After an opportunity for adequate discovery, summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(A)(3). 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. La. C.C.P. art. 966(A)(4).
The burden of proof is on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense. Instead, after meeting its initial burden of showing that there are no genuine issues of material fact, the mover may point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, summary judgment shall be granted unless the adverse party can produce factual evidence 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).
The court may consider only those documents filed in support of or in opposition to the motion for summary judgment and shall consider any documents to which no objection is made. Any objection to a document shall be raised in a timely filed opposition or reply memorandum. The court shall consider all objections prior to rendering judgment. The court shall specifically state on the record or in writing which documents, if any, it held to be inadmissible or declined to consider. La. C.C.P. art. 966(D)(2).
Although typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also be raised by a motion for summary judgment. Hogg v. Chevron USA, Inc, 2009-2632, 2009-2635 (La. 7/6/10), 45 So.3d 991, 997, citing Doe v. Jones. 2002-2581 (La.App. 1st Cir. 9/26/03), 857 So.2d 555, 557. When prescription is raised by motion for summary judgment, review is de novo, using the same criteria used by the district court in determining whether summary judgment is appropriate. Hogg, 45 So.3d at 997.
The Court noted in Doe, "[w]here ... the disputed issue is one of law rather than material fact, the use of summary judgment is particularly appropriate and probably preferable to the use of the peremptory exception from an evidentiary standpoint." Doe, 857 So.2d at 557 n.3.
When prescription is raised by the peremptory exception, with evidence introduced at a hearing, however, the district court's finding of fact on the issue of prescription is subject to the manifest error standard of review. Hogg. 45 So.3d at 997 n.6, citing Carter v. Haygood. 20040646 (La. 1/19/05), 892 So.2d 1261, 1267.
Louisiana Revised Statute 23:1361 provides a statutory basis for a cause of action for retaliatory discharge. An action for retaliatory discharge under La. R.S. 23:1361 is a delictual action, which is governed by the one-year prescription of La. C.C. art. 3492, and prescribes one year from the date of discharge. Maquar v. Transit Management of Southeast Louisiana, Inc., 593 So.2d 365, 367 (La. 1992).
Louisiana Revised Statute 23:1361 provides, in pertinent part, as follows:
B. No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.
C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year's earnings, together with reasonable attorney's fees and court costs.
D. The rights and remedies granted by this Section shall not limit or in any way affect any rights and remedies that may be available under the provisions of any other state or federal law.
Ordinarily, when the objection of prescription is raised in a peremptory exception, the party pleading the exception of prescription bears the burden of proving the claim has prescribed. Hogg, 45 So.3d at 998. However, when the face of the petition reveals that the plaintiffs claim appears to have prescribed, the burden shifts to the plaintiff to show why the claim has not prescribed. This traditional allocation of the burden of proof is altered somewhat when prescription is raised through a motion for summary judgment rather than through the peremptory exception. Hogg, 45 So.3d at 998. In such a case, the movant is required to prove, based solely on documentary evidence and without the benefit of testimony at a hearing, that there is no genuine material factual issue in dispute. Baca v. Sabine River Authority, 2021-0009 (La.App. 1st Cir. 6/4/21), 327 So.3d 529, 533, writ denied, 2021-00939 (La. 10/19/21), 326 So.3d 261, citing Hogg, 45 So.3d at 998.
In the instant case, McLane contends in its motion for summary judgment that plaintiffs retaliatory discharge action is prescribed on its face and should be dismissed as untimely. In support of its motion, McLane attached numerous exhibits, including copies of plaintiffs petition bearing a fax-filed date of September 11, 2019, and a filing date of September 24, 2019. On review of the face of the petition, we find that plaintiffs claim for retaliatory discharge appears to have prescribed before it was filed on September 24, 2019, over a year after his discharge on September 14, 2018. Thus, plaintiff bore the burden of proving an interruption or suspension of the applicable prescriptive period. See Dill v. Wiley, 2019-1638 (La.App. 1st Cir. 11/6/20), 315 So.3d 878, 881.
In his opposition to the motion for summary judgment, plaintiff conceded that his claim was prescribed on its face, but argued that the one-year prescriptive period was interrupted by the filing of his disputed claim for compensation with the OWC on January 17, 2019. Plaintiff contended that "when an employee files a Disputed Claim for Compensation with the [OWC], prescription is interrupted as to claims against the employer as the OWC is a court of competent jurisdiction for compensation claims." Thus, plaintiff argued that his disputed claim for compensation, filed on January 17, 2019, interrupted prescription as to all claims against McLane. In support of his opposition, plaintiff filed several exhibits including a copy of his disputed claim for compensation attached to the affidavit of his attorney, Remy Jardell, who attested that he filed the claim. We disagree.
Pursuant to La. C.C. art. 3462, prescription is interrupted when suit is filed in a court of competent jurisdiction and venue. However, if an action is commenced in an incompetent court, or in an improper venue, prescription is interrupted only as to a defendant served by process within the prescriptive period. In order to interrupt prescription in a court of competent or incompetent jurisdiction, the filing must inform as to the causes of action sued upon and must be sufficient to inform the person served of the legal demands made upon him. See La. C.C. art. 3462, Revision Comments - 1982, Comment (b) ("The filing of suit in a court of competent jurisdiction and venue interrupts any kind of prescription as to the causes of action therein sued upon, provided the plaintiff is a proper party plaintiff and the defendant is a proper party defendant. [Emphasis added.]"). See also La. C.C. art. 3462, Revision Comments - 1982, Comment (d) ("Service of process interrupts the running of prescription even though the process is defective and subject to exception, if it is sufficient to inform the person served of the legal demands made upon him from the described occurrence. [Emphasis added.] Quoting Conner v. Continental Southern Lines, Inc., 284 So.2d 485, 488 (La. 1974).")
We have thoroughly reviewed the disputed claim for compensation filed by plaintiff herein and can find no mention of retaliatory discharge or wrongful termination. Mindful that plaintiffs complaint was filed January 17, 2019, and he was terminated September 14, 2018, plaintiff only indicated therein that his bona-fide dispute was that no wage benefits had been paid, that McLane failed to pay or timely pay indemnity or medical benefits, and that such failure was arbitrary and capricious, entitling him to attorney fees, penalties, and costs. Thus, the filing of plaintiffs disputed claim for compensation did not place McLane on notice of plaintiffs retaliatory discharge claim, and therefore did not and could not serve to interrupt prescription on that claim. See Dill, 315 So.3d at 882.
Accordingly, in response to McLane's showing that plaintiffs claim for retaliatory discharge was prescribed on the face of his petition, plaintiff has failed to establish that prescription was interrupted or that a material issue of fact remains as to the timeliness of his claim. Finding no merit to plaintiffs assignment of error on appeal, we affirm the judgment of the district court granting McLane's motion for summary judgment and dismissing plaintiffs claims with prejudice.
CONCLUSION
For the above and foregoing reasons, the January 18, 2022 judgment of the district court is affirmed. Costs of this appeal are assessed to plaintiff/appellant, Marcus Sion.
AFFIRMED.