Opinion
CIVIL ACTION No. 02-2510 SECTION "R" (3)
April 19, 2004
ORDER AND REASONS
Before the Court are the following motions:
(1) Defendant Orleans Parish School Board's Motion to Exclude the Jury from Considering the Issue of Equitable Relief;
(2) Defendant's Motion in Limine and Motion to Strike; and
(3) Plaintiff Eberial McCoy's Motion in Limine and Motion to Strike.
Having considered the motions and the applicable law, the Court rules as follows.
I. FACTS AND PROCEDURAL BACKGROUND
Defendant Orleans Parish School Board has employed plaintiff Eberial McCoy since 1985. In December 2001, OPSB employed plaintiff as principal of John W. Hoffman Elementary School. On December 5, 2001, plaintiff met with her supervisor, Dr. Anne Siesel, for a semi-annual review. Dr. Siesel informed plaintiff of her dissatisfaction with plaintiff's performance as principal at Hoffman and with her excessive absences during the preceding months. In evaluating plaintiff's performance, Dr. Siesel relied on Hoffman's status as one of the lowest performing schools in the State of Louisiana. Siesel then placed McCoy on an intensive assistance plan.
Plaintiff suffers from two chronic medical conditions — diabetes and hypertension. In December 2001, plaintiff sought treatment from her physician, Dr. Michael Casey, because her diabetic and hypertensive conditions had worsened. Plaintiff informed Dr. Siesel that she planned to take sick leave. Plaintiff went to the OPSB Central Office on December 10, 2001, where she completed OPSB's form entitled "Form for Requesting Leave of Absence (Other than Sabbatical and Maternity)." Plaintiff requested a leave of absence from December 6, 2001 until January 1, 2002 based upon Dr. Casey's orders. On December 10, 2001, OPSB received a letter from Dr. Casey, which explained that it was "medically necessary" for plaintiff to take a leave of absence. (See Ex. A, Pl.'s Mem. Supp. Mot. Summ. J., at 129).
On December 7, 2001, Dr. Siesel wrote to Ollie S. Tyler, Chief Academic Officer, and recommended that McCoy not be returned to her principalship at Hoffman. ( See Pl.'s Trial Ex. 34). On December 21, 2001, Colonel Alphonse Davis, then head of OPSB, scheduled a meeting with plaintiff, Dr. Siesel, and others. At the meeting, Colonel Davis removed plaintiff as principal of Hoffman. Davis informed plaintiff that she could return to work for OPSB as either an assistant principal or as a Principal on Special Assignment ("POSA"). Plaintiff elected to return as a POSA.
Plaintiff returned to work on January 7, 2002 as a POSA. Plaintiff waited over two weeks before OPSB placed her at 0. Perry Walker Middle School. When plaintiff reported to 0. Perry Walker, the principal informed her that the school already had an assistant principal. Plaintiff performed teacher aide "O3" administrative tasks at 0. Perry Walker. Plaintiff performed these tasks only when the person assigned to them could not do so. Since her return to work, plaintiff has not served as the lead school site administrator at any campus. Plaintiff's job description has changed twice, and her job responsibilities have decreased significantly.
Plaintiff complained to the new OPSB superintendent, Anthony Amato. Plaintiff alleges that Amato told her that her excessive absences are not indicative of a school board administrator and that she will never serve as a principal under his administration. Amato then demoted her to a fifth-grade classroom teacher at Morris F.X. Jeff Elementary School.
In August 2002, plaintiff sued OPSB in this Court, alleging that it violated the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq., when it demoted her to POSA after her FMLA-approved absence. Plaintiff also alleges that OPSB retaliated against her for exercising her rights under the FMLA. Defendant argues that it would have reassigned McCoy regardless of her FMLA-approved absence because of Hoffman's low performance.
The Court held a pretrial conference on January 8, 2004. Since the pretrial conference, the Court has twice continued trial because defense counsel is in trial in Civil District Court for the Parish of Orleans. Trial in this matter is currently scheduled on June 14, 2004.
II. DISCUSSION
1. Motion to Exclude the Jury from Considering the Issue of Equitable Relief
The parties do not dispute that plaintiff seeks front pay damages for her inability to work during the summer as principal at Hoffman and "to work in any extra programs, any tutoring programs or summer programs that the district provides." ( See Def.'s Ex. B., at 161). Defendant argues, however, that front pay is an equitable remedy that the Court, and not the jury, must determine.
The FMLA provides that "[a]ny employer who violates section 2615 of this title shall be liable to any eligible employee affected for . . . such equitable relief as may be appropriate, including employment, reinstatement, and promotion." 29 U.S.C. § 2617(a)(1)(B). Pursuant to this language, courts have recognized that although reinstatement is the preferred remedy in discrimination cases, front pay is appropriate when reinstatement is not feasible or practicable. See, e.g., Hardin v. Caterpillar, Inc., 227 F.3d 268, 269 (5th Cir. 2000) (recognizing front pay damages in FMLA suit).
It is well-established in the Fifth Circuit that the Court, and not the jury, decides the issue of the availability and the amount of front pay damages. See, e.g., Walther v. Lone Star Gas Co., 952 F.2d 119/127 (5th Cir. 1992) ("Since front pay is an equitable remedy, the district court rather than the jury should determine whether an award of front pay is appropriate, and if so, the amount of the award."); Reneau v. Wayne Griffin Sons, Inc., 945 F.2d 869, 870 (5th Cir. 1991) (same); Deloach v. Delchamps Inc., 897 F.2d 815, 823 (5th Cir. 1990) (same); Daigle v. Liberty Life Ins. Co., Civ. A. No. 94-1594, 1995 WL 224418, at *1 (E.D. La. 1995) (same).
Nevertheless, the Fifth Circuit has held that a district court may determine the availability and amount of front pay with the assistance of an advisory jury. See, e.g., Julian v. City of Houston, 314 F.3d 721, 728 n. 25 (5th Cir. 2002) (noting that a district court may determine front pay damages with an advisory jury if it wishes); Rutherford v. Harris County, 197 F.3d 173, 188 (5th Cir. 1999) (same); Allison v. Citgo Petroleum Corp., 151 F.3d 402, 423 n. 19 (5th Cir. 1998) (same); see also FED. R. CIV. P. 39(c) ("In all actions not triable of right by a jury the court upon motion or of its own initiative may try any issue with an advisory jury. . . ."). Given the speculative nature of front pay damages and that "[t]he courts must employ intelligent guesswork to arrive at the best answer," see Reneau, 945 F.2d at 870, the Court will use the jury as an advisory jury under Rule 39(c) to determine front pay damages. The Court recognizes, however, that it alone determines the availability and the appropriate amount of front pay damages. For these reasons, the Court denies defendant's motion to exclude the issue of equitable relief from the jury.
2. Defendant's Motion in Limine and Motion to Strike
As noted in the Court's order and reasons dated April 15, 2004, which denied plaintiff's motion for summary judgment, plaintiff alleges that OPSB retaliated against her both when it demoted her from principal of Hoffman to "Principal on Special Assignment" at another school and when Amato demoted her to the tion of Elementary Classroom Teacher.
The FMLA allows an employee to sue his or her employer if that employer interferes with a substantive right provided by the FMLA. 29 U.S.C. § 2615(a)(1). In addition, the FMLA prohibits an employer from discharging or discriminating against a person who exercises his or her rights under the Act. See 29 U.S.C. § 2615(a)(2). Thus, the Fifth Circuit has held that "employers" have a prescriptive obligation under the FMLA — they must grant employees substantive rights guaranteed by the FMLA — and they have a prescriptive obligation — they may not penalize employees for exercising these rights." Chaffin v. John H. Carter, Co., Inc., 179 F.3d 316, 319 (5th Cir. 1999) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151 (1st Cir. 1998)).
Defendant moves to exclude any evidence that defendant retaliated against plaintiff because her complaint does not contain a retaliation claim. Defendant does not dispute that plaintiff has stated a claim that it violated the FMLA's prescriptive obligations. Defendant contends, however, that plaintiff's complaint does not state a claim for a prescriptive violation of the Act.
Federal Rule of Civil Procedure 8 requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." See FED. R. CIV. P. 8(a). The Supreme Court has held that Rule 8(a)'s require statements must simply "'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema, 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). The Court finds that plaintiff's complaint gave defendant fair notice that she alleged a violation of the prescriptive obligations off the FMLA by alleging that defendant demoted her to "Principal on Special Assignment" when she took sick leave.
There is no question that plaintiff's complaint, read in its entirety, states a claim against OPSB for retaliating against her by "demoting" her from principal to Principal on Special Assignment." Plaintiff alleges that she took an FMLA-approved sick leave. ( See Pl.'s Compl., at ¶¶ 8-10). Plaintiff alleges that during the sick leave she attended a meeting with Davis, Siesel, and others during which Davis removed her as principal from Hoffman. ( See id. at ¶ 12). Plaintiff also alleges that when she returned to work, OPSB relegated her to the position of Principal on Special Assignment. ( See id. at ¶ 16). This basic recitation of facts is enough to allege that OPSB retaliated against her for taking an FMLA-approved sick leave.
The Court recognizes that plaintiff's complaint makes no mention of Amato or that Amato "demoted" her to fifth-grade classroom teacher when he learned of plaintiff's FMLA suit. Nevertheless, "'[w]hen an issue is set forth in the pretrial order, it is not necessary to amend previously filed pleadings' because 'the pretrial order is the controlling document for trial.'" Wilson v. Muckala, 303 F.3d 1207, 1215 (10th Cir. 2002) (quoting Expertise, Inc. v. Aetna Fin. Co., 810 F.2d 968, 973(10th Cir. 1987); see also FED. R. Civ. P. 16(e) ("Th[e pretrial]" order shall control the subsequent course of the action unless modified by subsequent order."). The pretrial order "is treated as superceding the pleadings and establishing the issues to be considered at trial." Wilson, 303 F.3d at 1215 (citing Charles Alan Wright, Arthur r. Miller, Mary Kay Kane, Federal Practice and Procedure: Civil 2d § 1522)).
The Court notes that this event allegedly took place after plaintiff filed her complaint.
Here, plaintiff clearly set forth the facts surrounding her claim of retaliation by Amato in the pretrial order. ( See Rec. Doc. #48, at 5). Defendant did not object to the inclusion of these facts in the pretrial order at the pretrial conference. Indeed, defendant did not object to these facts until it filed its opposition to plaintiff's motion for summary judgment. Defendant was aware of these facts at the pretrial conference on January 8, 2004. Since the pretrial conference, defendant has twice asked the Court to continue trial, which the Court has granted. Trial in this matter is now set for June 14, 2004. At the time of trial, defendant will have known of these facts for six months. The laudable purpose of Rule 16 is to avoid surprise and prejudice to the opposing party who is not aware of claims or issues at the time that the parties submit the pretrial order to the court. See Wilson, 303 F.2d at 1216. The Court finds no surprise or prejudice here. When the parties proceed to trial, six months will have passed since the pretrial conference. Defendant will have had ample time to treat this claim.
For these reasons, the Court denies defendants motion in limine and motion to strike. The Court recognizes, however, that defendant has a right to conduct discovery on this claim, and it will accordingly extend the discovery deadline as to this claim.
3. Plaintiff's Motion in Limine and Motion to Strike
Plaintiff moves the Court to exclude from evidence any documents referenced in OPSB's Supplemental Exhibit List and any witness listed by defendant's Amended Witness List. In its Amended Witness List, OPSB lists as a witness a representative of the Louisiana Department of Educationy — Distinguished Educator Program. In its Supplemental Witness List, defendant lists (1) the State of Louisiana, Department of Education, Application for Fiscal Year 32001 2002; and (2) New Orleans Public Schools — Choice Policy 5112.5 (2001-2002).
The Court finds that OPSB has shown good cause for the late introduction of the witness and the exhibits. See Hines v. Illinois Cent. R.R. Co., No. Civ. A. 98-3251, 1999 WL 997504, at *1 (E.D. La. 1999). Defense counsel avers that he did not possess the exhibits nor know of the witness until December 19, 2003. Defendant listed the exhibits and the witness in the pretrial order. Plaintiff will have known of the exhibits and the witness for six months when trial starts. The Court finds that plaintiff will suffer no prejudice by the late introduction of the two exhibits and the witness.
For these reasons, the Court denies plaintiff's motion in limine and motion to strike. As noted above, plaintiff has the right to conduct discovery as to these exhibits and this witness, The Court will accordingly extend the discovery deadline as to them.
III. Conclusion
For the foregoing reasons, the Court denies defendant's motion to exclude the issue of equitable relief from the jury.
The Court further denies both defendant's and plaintiff's motions in limine and motions to strike.
The Court further extends the discovery deadline as to the Amato retaliation claim, defendant's Amended Witness List, and defendant's Supplemental Exhibit List until May 31, 2004 New Orleans, Louisiana, this day of April, 2004