Opinion
No. 2002 CA 0184.
December 20, 2002.
APPEALED FROM THE NINETEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF EAST BATON ROUGE STATE OF LOUISIANA SUIT NUMBER 473,437 HONORABLE TIMOTHY E. KELLEY, JUDGE.
Clement P. Donelon, Metairie, LA, Counsel for Plaintiffs/Appellants, Arnaud D. Daigle, Emile Maffei, Sr., Murphy C. Majoria, Ann B. Savwoir, Ernie Serpas, Darryl V. Thomas, and Leonard Troullier, Jr.
Glenn T. Cambre, Baton Rouge, LA, Counsel for Defendant/Appellee Louisiana Department of Health and Hospitals.
Leslie S. Levet, Baton Rouge, LA, Counsel for Defendant/Appellee, State of Louisiana, through Department of Health and Hospitals.
Robert R. Roland, Baton Rouge, LA, Counsel for Defendant/Appellee Department of Civil Service.
BEFORE: FITZSIMMONS, GUIDRY, AND PETTIGREW, JJ.
In this employment discrimination action, plaintiffs, Arnaud D. Daigle, Emile Maffei Sr., and Murphy C. Majoria, appeal the district court's granting of defendant's, State of Louisiana, through the Department of Health and Hospitals, Office of Public Health (State), peremptory exception raising the objection of prescription. For the reasons that follow, we affirm in part and reverse in part.
FACTS AND PROCEDURAL HISTORY
Arnaud D. Daigle, Emile Maffei Sr., and Murphy C. Majoria (plaintiffs) are employed as staff pharmacists by the State in its Office of Public Health in New Orleans. On June 16, 2000, plaintiffs filed a petition for damages, naming as defendants the State, Allen Reynolds, and the State Civil Service Commission, seeking damages for constitutional violations and discriminatory conduct. Following the filing by plaintiffs of a first and second supplemental and amended petition, the State filed its first peremptory exception raising the objections of prescription and no cause of action on September 8, 2000. In a judgment signed on December 11, 2000, the district court granted the State's exception of prescription and granted the plaintiffs leave to amend their petition within fifteen days from signing of the judgment in order to cure the infirmities of their allegations.
Leonard Troullier, Jr., Ann B. Savwoir, and Ernie Serpas were also listed as plaintiffs to this action. However, they are no longer a part of the current appeal pursuant to orders of dismissal signed by this court on February 1, 2002.
Allen Reynolds and the State Civil Service Commission also filed an exception raising the objections of lack of subject matter jurisdiction, no cause of action, and vagueness. In the same judgment signed on December 11, 2000, the district court granted their exception of no cause of action and dismissed them as defendants to this action.
Plaintiffs thereafter filed a third supplemental and amended petition on December 20, 2000, whereupon the State again filed a peremptory exception raising the objection of prescription. A hearing on this exception was held on April 23, 2001, and in a judgment signed on May 7, 2001, the district court granted the State's exception, finding that plaintiffs claims did not constitute a continuing tort and that contra non valentum did not apply, and granted plaintiffs thirty days to amend their petition to state a cause of action.
On June 1, 2001, plaintiffs filed their fourth supplemental and amended petition. The State, on July 12, 2001, again filed a peremptory exception raising the objection of prescription. A hearing on the exception was held on September 17, 2001, and in a judgment signed on October 11, 2001, the district court granted the State's exception, finding that the plaintiffs failed to state a claim of hostile environment discrimination, and further finding that plaintiffs claims were prescribed in accordance with Huckaby v. Moore, 142 F.3d 233 (5th Cir. 1998) and King v. Phelps Dunbar, L.L.P, 98-1805 (La. 6/4/99), 743 So.2d 181.
ASSIGNMENTS OF ERROR
Arnaud D. Daigle, Emile Maffei Sr., and Murphy C. Majoria now appeal from this judgment and assert the following assignments of error:
1. The District Court erred in holding that ongoing wage discrimination does not constitute a continuing violation of Louisiana law.
2. The District Court erred in holding that wage discrimination claims that continue into the prescriptive period are prescribed if said wage discrimination commenced prior to the prescriptive period.
3. The District Court erred in holding that the doctrine of continuing torts and/or continuing violations of employment discrimination statutes is only applicable in hostile environment cases.
4. The District Court erred in holding that the principle of contra non valentum was not applicable to the claims of Plaintiffs-Appellants herein.
5. The District Court erred in not requiring Defendant State through Department of Health and Hospitals to bear its burden of proving that the discrimination claims of Plaintiffs-Appellants are prescribed.
6. The District Court erred by not applying the three year prescription provision contained in Civil Code Article 3494 (1) to the wage discrimination claims of Plaintiffs-Appellants.
DISCUSSION
Standard of Review
When evidence is introduced and evaluated at the trial of a peremptory exception, an appellate court's review is subject to the traditional rules governing appellate review of facts. Delmore v. Hebert, 99-2061, p. 3 (La.App. 1st Cir. 9/22/00), 768 So.2d 251, 253. As such, a trial court's factual determinations regarding prescription should not be reversed in the absence of manifest error. Turnbull v. Thensted, 99-0025, p. 5 (La.App. 4th Cir. 3/1/00), 757 So.2d 145, 149,writs denied, 00-1502 and 1503 (La. 8/31/00), 766 So.2d 1277 and 1278. However, when a question of law is presented, the appellate court's review consists of determining whether the trial court was legally correct or incorrect in its decision. Johnson v. Louisiana Tax Commission, 01-0368, p. 2 (La.App. 4th Cir. 1/23/02), 807 So.2d 1050, 1052.
Applicable Prescriptive Period
This court has previously stated that the character of an action disclosed in the pleadings determines the prescriptive period applicable to that action. Krolick v. State, Department of Health and Human Resources, 99-2622, p. 5 (La.App. 1st Cir. 9/22/00), 790 So.2d 21, 25,writ denied, 00-3491 (La. 2/9/01), 785 So.2d 829. In the plaintiffs fourth supplemental and amended petition, the action is characterized as discrimination. However, on appeal, plaintiffs argue that they are seeking recovery for compensation, which they are owed by the State as a result of non-merit factor wage discrimination, and therefore the three-year prescriptive period found in La.C.C. art. 3494 (1) is applicable to their action.
Louisiana Civil Code Article 3494 (1) provides that "[a]n action for recovery of compensation for services rendered, including payment of salaries [and] wages . . ." are subject to a liberative prescriptive period of three years.
In their various petitions, the basis for plaintiffs' claims is the discriminatory conduct of the State in paying them substantially less than another/other pharmacist(s) in violation of the state and federal constitution and 42 U.S.C. § 1983. These types of actions are subject to a one-year prescriptive period. Nolan v. Jefferson Parish Hospital Service District No. 2, 01-175, p. 14 (La.App. 5th Cir. 6/27/01), 790 So.2d 725, 733;Jones v. Orleans Parish School Board, 688 F.2d 342, 344 (5th Cir. 1982),cert denied, 461 U.S. 951, 103 S.Ct. 2420, 77 L.Ed.2d 1310 (1983). Therefore, we find no error by the district court in applying the one-year prescriptive period to plaintiffs' action.
Burden of Proof
Plaintiffs next contend that the district court erred in not requiring the State to bear its burden of proving that plaintiffs' claims are prescribed. In Brister v. Geico Insurance, 01-0179, p. 4 (La.App. 1st Cir. 3/28/02), 813 So.2d 614, 616, we stated the following regarding the burden of proof at trial of an exception raising the objection of prescription:
If the facts alleged in a petition do not show that a claim has prescribed, the burden is on the party raising the objection of prescription to prove it. Conversely, if a claim is prescribed on the face of the pleadings, the burden is on the plaintiff to show that prescription has not tolled because of an interruption or a suspension of prescription. [Citation omitted.]
However, the plaintiffs argue that in accordance with Bustamento v. Tucker, 607 So.2d 532 (La. 1992), their petition was not prescribed on its face and therefore, the burden of proof was on the State as the party raising the objection of prescription. In Bustamento the Louisiana Supreme Court stated:
When . . . the plaintiffs petition alleges a continuous course of conduct that did not cease to exist until within the year preceding the filing of the suit, the plaintiffs action is not prescribed on the face of the petition; hence, the burden of proof is on the defendant or the party pleading prescription to establish the facts necessary to sustain the plea. [Citations omitted.]
In its May 7, 2001 judgment on the State's prior peremptory exception raising the objection of prescription, the district court specifically found that the plaintiffs' claims did not constitute a continuing tort and gave them an opportunity to amend their petition to state a cause of action. Therefore, when plaintiffs filed their fourth supplemental and amended petition, to the extent it alleged the same facts and basis for claiming violation of their constitutional rights and acts of discrimination, the district court did not err in finding the petition to be prescribed on its face, requiring plaintiffs to show why prescription had not tolled.
However, in regard to the plaintiffs' claim that they are presently being paid less than all other pharmacists, which facts were not pled in their prior petition, we find that in accordance with Bustamento, they did allege a continuing course of conduct, whereby the burden shifted to the State to show that the plaintiffs' claim had prescribed. Therefore, in this regard we find that the district court erred in placing the burden on the plaintiffs to prove that prescription had tolled for this claim.
Despite the district court's error in placing the burden on the plaintiffs, we find from the record before us ample evidence to determine whether the State met its burden in showing that the plaintiffs' claims as to the other pharmacists were prescribed. At the hearing on this exception, the State presented evidence that in accordance with the United States Fifth Circuit Court of Appeal's decision in Huckaby, supra, and the Louisiana Supreme Court's decision in King, supra, that the continuing violation doctrine only applies to hostile environment claims. However, from our reading of these cases, we do not find that proposition to be supported.
In Huckaby, the Fifth Circuit had before it claims of hostile environment, demotion, and failure to promote. However, the court found that the only claim subject to the continuing violation doctrine was the hostile environment claim. Huckaby, 142 F.3d at 239. The reasoning for this finding was that both the failure to promote and demotion were isolated occurrences, and therefore did not meet the requirements of a continuing violation. The court did not find that continuing violation only applied in hostile environment claims as the State contends.
In Huckaby, the Fifth Circuit stated "[a]lthough there is no definitive standard for what constitutes a continuing violation, the plaintiff must demonstrate more than a series of discriminatory acts. He must show an organized scheme leading to and including the present violation such that it is the cumulative effect of the discriminatory practice, rather than any discrete occurrence, that gives rise to the cause of action." 142 F.3d at 239.
Additionally, in King, the action before the supreme court involved a hostile environment claim. Again, the court in King did not specifically state that only hostile environment claims were subject to the continuing violation doctrine. Rather, the court in King merely reaffirmed the Fifth Circuit's decision in Huckaby that the continuing violation doctrine can be applied to a hostile environment claim. King, 743 So.2d at 188.
Therefore, we address the State's argument that mere receipt of a paycheck does not constitute a continuing tort or a continuing act of discrimination. The State argues that in accordance with the Fifth Circuit's decisions in Huckaby, 142 F.3d at 239 n. 3 and Hendrix v. City of Yazoo City, 911 F.2d 1102, 1105 (5th Cir. 1990), the mere receipt of a paycheck does not constitute a continuing act of discrimination.
In Hendrix, a group of municipal firefighters brought an action against the city for discriminatory reduction in pay more than three years after the reduction took effect. The court ultimately held that the reduction in pay itself was the violation, and subsequent pay packets simply gave it continuing effect in a facially neutral manner. Hendrix, 911 F.2d at 1105. In arriving at this conclusion, the court reasoned as follows:
[T]he distinction does not turn on the type of discrimination, but on whether the practice at issue is part of; or a repetition of; a past discriminatory act, in which case there is a continuing violation, or whether it is facially neutral, simply giving effect to prior discrimination, in which case there is no continuing violation.
Hendrix, 911 F.2d at 1104.
This reasoning was reiterated by the Fifth Circuit in Huckaby, where the court stated that " Berry gives the example of a bi-weekly paycheck as "recurring acts, but we specifically have held that the mere receipt of a paycheck does not constitute a "continuing act' of discrimination." 142 F.3d at 239 n3.
We agree that according to Hendrix and its progeny, the continuing violation doctrine does not apply to plaintiffs' claims as they relate to the other pharmacists. The continued issuance of paychecks at the lower rate is a neutral application of the past discriminatory conduct, which was the hiring of plaintiffs at the very bottom of the pay scale, despite the payment of other similarly qualified pharmacists at a higher rate.
We recognize that the United States Supreme Court's decision inBazemore v. Friday, 478 U.S. 385, 395-396, 106 S.Ct. 3000, 3006, 92 L.Ed.2d 315 (1986), which is relied upon by the plaintiffs, does state that "[e]ach week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII." However, we find that the Fifth Circuit's decisions as articulated above more clearly refine the parameters of the continuing tort or continuing violation theory, without diverging from the precedent set by the Supreme Court.
In Bazemore, the system in place was facially discriminatory, as it was designed to pay blacks less than whites, and therefore, it discriminated each time it was applied. 478 U.S. at 395, 106 S.Ct. at 3006; see also Lorance v. ATT Technologies, Inc., 490 U.S. 900, 913 n. 5, 109 S.Ct. 2261, 2269 n. 5, 104 L.Ed.2d 961 (1989). In the instant case, the plaintiffs do not attack the system as being discriminatory, but rather the decision of the State to pay them at the bottom of the scale. Therefore, in accordance with Hendrix and its progeny, we find that the initial hiring at the bottom end of the scale is the only violation present on the face of the record, and the mere issuance of paychecks to the plaintiffs gave it continuing effect in a facially neutral manner. As such, we find that the continuing violation theory does not apply to plaintiffs' claims as to the other pharmacists in the state, and their claims relating to those other pharmacists are therefore prescribed.
The 1991 Civil Rights Act § 112 legislatively reversed Lorance to the extent that an intentionally discriminatory seniority system is now a violation of Title VII when adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system. 42 U.S.C. § 2000e-2 (h); see also Anderson v. Zubieta, 180 F.3d 329, 336 n. 8 (D.C. Cir. 1999).
The record shows at a hearing held on April 23, 2001, one of the plaintiffs, Murphy Majoria, testified that "contrary to the hiring procedures that were in effect everywhere else in the state, that apparently all of us [plaintiffs] were hired at the very bottom of the scale."
Contra Non Valentum
The judicially created doctrine of contra non valentum is an exception to the general rule of prescription and is based on the civilian concept that prescription does not run against a party who is unable to act. Ellender v. Goldking Production Company, 99-0069, p. 8 (La.App. 1st Cir. 6/23/00), 775 So.2d 11, 16, writ denied, 00-2587 (La. 2/16/00), 786 So.2d 96. The doctrine is applied in four general situations, but the situation relevant to the instant appeal concerns where the cause of action is not known or reasonably knowable by the plaintiff. Corsey v. State, Department of Corrections, 375 So.2d 1319, 1321 (La. 1979). However, the principles of contra non valentum do not halt the running of prescription if the plaintiffs ignorance is the result of his own willfulness or neglect. That is, a plaintiff will be deemed to know what he could by "reasonable diligence" have learned.Ellender, 99-0069 at 10, 786 So.2d at 17.
The plaintiffs contend on appeal that they did not become aware of the fact that they were being paid less than the staff pharmacist hired in April of 1994 until they spoke with him in April of 2000. At that time, the plaintiffs discovered that when the staff pharmacist was hired in 1994, he was being paid approximately twenty percent more then they were. The State, however, argues that the salary information was public record, and therefore the plaintiffs' ignorance in failing to obtain that information precludes the applicability of contra non valentum.
Based on the record before us, we do not find that, merely because salary information of public employees is a matter of public record, the plaintiffs' inaction precludes the applicability of contra non valentum. If this were the case, every public employee when hired, and when others in the same position are hired, would have to make a public records request so as to protect his right to bring an action for potential unlawful conduct.
Further, we find the State's reliance on Ellender to be misplaced. In that case, the plaintiffs became aware of possible unlawful action when they received royalty checks, the amount of which was substantially reduced. The court in Ellender noted that at that point, the substantial reduction was enough to alert them to question and attempt to protect their interests. Ellender, 99-0069 at 9, 775 So.2d at 17. Such questioning or attempt was found to include simple inquiry among friends, as well as obtaining pricing information, which was a matter of public record. Ellender, 99-0069 at 10, 775 So.2d at 17. Nowhere did the court indicate that failure to obtain information that was of public record, when there was no triggering event to alert the plaintiffs of a possible wrong, constituted willfulness or lack of diligence for purposes of contra non valentum. Therefore, we reverse the trial court's determination that contra non valentum did not apply to prevent the running of prescription on plaintiffs' claims as to the staff pharmacist hired in April of 1994.
CONCLUSION
For the foregoing reasons, we reverse that part of the district court's judgment granting the State's peremptory exception raising the objection of prescription and dismissing the plaintiffs' action relating to the hiring of the staff pharmacist in April of 1994. We affirm the remainder of the district court's judgment and the costs of this appeal, in the amount of $1,863.66, are to be borne equally such that the State of Louisiana, through the Department of Health and Hospitals, Office of Public Health, pay half and Arnaud D. Daigle, Emile Maffei Sr., and Murphy C. Majoria shall pay half.
REVERSED IN PART. AFFIRMED IN PART.
FITZSIMMONS, J., dissents in part and assigns reasons.
I respectfully dissent, in part, as to the application of contra non valentum. In all other respects, I agree with the decision of the majority.