Opinion
NO. 2015 CA 0226
11-06-2015
CATRINA H. NORTHERN v. STATE OF LOUISIANA, THROUGH THE LOUISIANA DEPARTMENT OF REVENUE
Jill L. Craft Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Catrina H. Northern James D. "Buddy" Caldwell Attorney General Margaret A. Collier Baton Rouge, Louisiana Counsel for Defendant/Appellee State of Louisiana, through the Department of Revenue
NOT DESIGNATED FOR PUBLICATION Appealed from the 19th Judicial District Court
In and for the Parish of East Baton Rouge State of Louisiana
Case No. 591474
The Honorable Todd Hernandez, Judge Presiding Jill L. Craft
Baton Rouge, Louisiana
Counsel for Plaintiff/Appellant
Catrina H. Northern
James D. "Buddy" Caldwell
Attorney General
Margaret A. Collier
Baton Rouge, Louisiana
Counsel for Defendant/Appellee
State of Louisiana, through the
Department of Revenue
BEFORE: McDONALD, McCLENDON, AND THERIOT, JJ. THERIOT, J.
In this suit, Catrina H. Northern, the plaintiff/appellant, appeals the summary judgment of the Nineteenth Judicial District Court in favor of the defendant/appellee, the State of Louisiana through the Louisiana Department of Revenue (LDR), dismissing Ms. Northern's petition with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Catrina Northern was hired by LDR as a Revenue Tax Analyst I in April of 2006. Two years prior, Ms. Northern had been diagnosed with epilepsy that subjected Ms. Northern to partial seizures and migraine headaches.
Ms. Northern worked in the call center of LDR, where she answered phone calls of taxpayers to resolve their issues regarding payment and discrepancies on accounts relative to tax due notices. The call center is comprised of an "online" and an "offline" unit. The online unit answers phone calls. The offline unit is mostly comprised of Tax Specialists who research the more complex issues of taxpayers. Two employees with Tax Analyst I classification typically accompany and assist the Tax Specialists in research for a year to get training so that they can be promoted to the Tax Analyst II position. The offline unit is secluded from the call center floor and is not subjected to the same level of noise or phone activity as the online unit.
Ms. Northern worked as a call center agent in the online unit continually from 2006 to 2008. During that time, Ms. Northern claimed she suffered migraines or an occasional seizure approximately twice a month, for which she was allowed by her supervisor to leave the call center floor and work on matters with the offline unit for the remainder of the day. She was also allowed to take time off pursuant to the Family Medical Leave Act (FMLA) to receive clinical treatment for a migraine or a seizure without being penalized for taking sick leave.
In 2008, Ms. Northern was rotated to the offline unit. Ms. Northern found the working conditions of the offline unit more favorable, and she suffered less migraines and seizures. She therefore requested an accommodation to remain in the offline center. Ms. Northern was under the understanding that she would remain in the offline unit permanently after submitting a letter from her physician to her supervisor.
Shortly after rotating into the offline unit, due to organizational changes within the office, LDR's policies on tardiness and break time were suspended, and Ms. Northern was concerned that she would be unduly penalized because of her disability if she had to take an unexpected break due to a migraine or seizure.
In the spring of 2009, Ms. Northern's supervisor advised her that she would be rotated back into the online unit. Ms. Northern submitted a letter from her neurologist, Dr. Carolyn Baker, that requested Ms. Northern remain in the offline unit due to her disability, as required by the American Disabilities Act (ADA). She was then allowed to remain in the offline unit beyond the regular one-year rotation, with only one call center employee being rotated in and out instead of two employees. However, Ms. Northern was advised that she would still be required to answer phones during tax season.
Despite being allowed to stay in the offline unit, Ms. Northern's migraines and seizures intensified, and she requested leave for treatment under the FMLA on July 1, 2009. At approximately the same time, LDR had implemented a telecommuting program where certain employees could work from home. While on FMLA leave, Ms. Northern requested to be put into the telecommuting program, but her request was denied by her divisional supervisor, Jarrod Ganiglio.
Ms. Northern sent a letter on September 1, 2009 to her immediate supervisor, Dee Everett, requesting once again to remain in the offline unit permanently. Ms. Everett advised Ms. Northern that her request had been denied, but acknowledged that she had only been required to answer phones during the busiest time of the year and that generally she would not be required to do so.
In her performance ratings of that same month, Ms. Northern was rated as "2-Needs Improvement" in the "Attendance" and "Effectively handling telephone calls and work items" categories, which Ms. Northern believed was an unfair rating because it did not take into account the FMLA leave she had applied for. She requested review of these ratings with Mr. Ganiglio, and he declined to make any changes.
In October of 2009, LDR implemented an attendance policy where FMLA would not be deducted from the mandatory minimum attendance guidelines, except for employees who had ratings of "Exceeds Expectations" or "Outstanding." Ms. Northern alleged this policy unfairly penalizes employees who are absent pursuant to the FMLA.
Toward the end of 2009, Ms. Everett informed Ms. Northern that she would need another letter from Dr. Baker that stated the minimum amount of hours she would be able to answer the phone each day. Dr. Baker sent a letter to LDR that stated Ms. Northern could work a maximum of one hour a day on phone duty, with two breaks daily to avoid stress that could result in a migraine or a seizure, which was consistent with Ms. Northern's daily phone time in the offline unit.
Despite this request, in the spring of 2010, Ms. Northern was advised that she would be rotated off the offline unit, and two other Tax Analysts would be rotated in. She was ordered to log onto the call center for an entire workday until further notice. Ms. Everett also informed Ms. Northern that she would have to utilize her sick leave if she could not perform her duties. Around this time, Ms. Northern was diagnosed with high blood pressure, which she attributed to the stress of her work environment, although her physician did not specifically state what had caused her high blood pressure.
Ms. Everett sent a letter to Dr. Baker requesting a job analysis to determine if the accommodations were appropriate for Ms. Northern. She stated in the letter that during the peak season of 2009, Ms. Northern had logged over 300 hours on the phone, but that in the following year, Ms. Northern had requested to work no more than an hour per day on the phone. Ms. Everett advised that this would result in Ms. Northern spending over 85% of her work time on non-essential duties. Ms. Everett therefore requested from Dr. Baker that she describe exactly what functions Ms. Northern could or could not perform so appropriate accommodations could be made.
Ms. Northern filed a charge of discrimination with the Louisiana Commission of Human Rights on March 31, 2010. She alleged that the LDR had denied her reasonable accommodation for her disability and denied a transfer. She further asserted that she was being evaluated to determine if she could perform the essential functions of her job. Following this charge of discrimination, LDR notified Ms. Northern of two other positions in the department she could apply for, but she refused those positions because they paid less than her salary as a Tax Analyst II.
By this time, Ms. Northern had been promoted to Tax Analyst II. The position description of a Tax Analyst II as given by the Louisiana Department of Civil Service states that 95% of a Tax Analyst II's duties are to "[r]eceive and respond to incoming telephone calls pertaining to inquiries of the status of refund and tax due notices issued by [LDR] for resident and non resident individual income, withholding, sales, corporation income, corporation franchise, severance and excise taxes." The other 5% of the duties is described as "[p]erforms other miscellaneous tasks as assigned to insure the efficient operation of the division." A typical work day for a Tax Analyst II lasts eight hours. Therefore, 7.6 hours of a workday would be dedicated to answering phones, according to the position description.
In April of 2010, Ms. Northern was transferred back to the online unit. She claims that after being transferred, the noise and stress levels of the online unit caused her to have several partial seizures and one major seizure for which she had to be sent to the hospital. Mr. Ganiglio then decided that Ms. Northern's accommodation request was unreasonable.
Ms. Northern received an email from supervisor Kent LaPlace on September 27, 2010, informing her that she had seven recorded absences, and that after nine recorded absences, it was LDR's policy to perform a non-disciplinary removal of that employee. On November 29, 2010, Ms. Northern received a letter of non-disciplinary removal from her position due to absences, where she was purportedly continually absent since October 7, 2010 with insufficient sick leave to cover the absences.
Ms. Northern filed the instant petition on June 8, 2010, in which she claimed LDR discriminated, harassed, and retaliated against her because of her disability, causing her mental anguish, emotional distress, lost wages and earning capacity, physical and psychological injury, humiliation, and embarrassment. LDR filed a motion for summary judgment that was heard before the trial court on October 6, 2014. On October 20, 2014, the trial court signed a judgment finding in favor of LDR and dismissing Ms. Northern's petition with prejudice. Ms. Northern timely filed the instant appeal.
ASSIGNMENTS OF ERROR
Ms. Northern raises five assignments of error:
1. The district court erred in purportedly concluding that Ms. Northern's lawsuit exceeded the scope of her charge of
discrimination and/or that she failed to give notice pursuant to La. R.S. 23:303.
2. The district court erred in purportedly concluding that Ms. Northern was not "disabled" nor that she was a qualified individual with a disability.
3. The district court erred in purportedly concluding that Ms. Northern had failed to set forth sufficient summary judgment evidence in support of her claims of disability-based discrimination, including failure to accommodate, and harassment.
4. The district court erred in purportedly concluding Ms. Northern had failed to set forth sufficient evidence in support of her claims of reprisal and ADA retaliation.
5. The district court erred in purportedly concluding that Ms. Northern failed to set forth sufficient summary judgment evidence in support of her claims of intentional infliction of emotional distress (IIED).
STANDARD OF REVIEW
Summary judgment is subject to de novo review on appeal, using the same standards applicable to the trial court's determination of the issues. Berard v. L—3 Communications Vertex Aerospace, LLC, 2009-1202 (La. App. 1 Cir. 2/12/10), 35 So.3d 334, 339-40, writ denied, 2010-0715 (La. 6/4/10), 38 So.3d 302. 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). Its purpose is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial. Hines v. Garrett, 2004-0806, (La. 6/25/04), 876 So.2d 764, 769. Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, admissions, and affidavits in the record 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(B)(2).
On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover's burden on the motion does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must 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, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La. C.C.P. art. 966(C)(2); Janney v. Pearce, 2009-2103 (La. App. 1 Cir. 5/7/10), 40 So.3d 285, 288-89, writ denied, 2010-1356 (La. 9/24/10), 45 So.3d 1078.
DISCUSSION
To defeat a motion for summary judgment against an employment disability claim, the claimant must establish a prima facie case that: (1) he has a disability, as defined by the statute, (2) he is qualified for the job, and (3) an adverse employment decision was made solely because of the disability. The threshold essential element of the claim is whether the claimant meets the statutory definition of "disabled." Thomas v. Louisiana Casino Cruises, Inc., 2003-1937 (La. App. 1 Cir. 6/25/04), 886 So.2d 468, 470, writ denied, 2004-1904 (La. 10/29/04), 885 So.2d 598.
No otherwise qualified person with a disability shall, on the basis of a disability, be subjected to discrimination in employment. La. R.S. 23:323. Louisiana Revised Statutes 23:322(3) defines "person with a disability" as any person who has a physical or mental impairment which substantially limits one or more of the major life activities, or has a record of such an impairment, or is regarded as having such an impairment. "Impairment" means an intellectual disability, any physical or psychological disorder or condition. La. R.S. 23:322(6). "Major life activities" are functions such as caring for one's self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. La. R.S. 23:322(7). Louisiana Revised Statutes 46:2251, et seq., which is entitled the "Civil Rights Act for Persons with Disabilities," contains similar definitions. La. R.S. 46:2253.
The Louisiana statutory framework allows a person to be classified as handicapped only if he/she is, in fact, handicapped or "regarded as" handicapped as statutorily defined. Scott v. Stokes, 2007-0887 (La. App. 4 Cir. 1/23/08), 976 So.2d 769, 773. Ms. Northern does have an impairment; she was diagnosed with epilepsy. In order for her impairment to qualify as a disability, her impairment must substantially limit one of her major life activities. If a person is not found to have a "known physical limitation," then they are not owed a "reasonable accommodation" as defined by La. R.S. 23:322. Id.
La. R.S. 23:322(9) states, in pertinent part: "Reasonable accommodation" means an adjustment or modification to a known physical limitation of an otherwise qualified person with a disability which would not impose an undue hardship on the employer. --------
The record shows, specifically through Dr. Baker's correspondence with LDR, that Ms. Northern is able to complete manual tasks, and she is able to work. Dr. Baker never said that Ms. Northern could not answer phones. Instead, Ms. Northern wishes that her manner of work and the length of time she does work be limited. Although she was diagnosed with epilepsy in 2004, she performed her duties in the call center without accommodation from 2006 to 2008.
We find the instant case is similar to the circumstances in Scott, where Ms. Scott was employed by Lockheed as a security inspector, when she began suffering fainting spells from a diagnosed seizure disorder. After returning from medical leave, she was restricted from carrying a deadly weapon due to her anger management issues. As a result, Ms. Scott claimed discrimination due to her disability. The discrimination claim was dismissed with prejudice through summary judgment. Scott, 976 So.2d at 770-71.
After a review of Louisiana's anti-discrimination laws, the Fourth Circuit concluded that Ms. Scott was not legally disabled, and that her restriction from carrying a weapon and her subsequent termination were for non-discriminatory reasons. Scott, 773-74. The Fourth Circuit found that there was a lack of factual support for an intrinsic element of a discrimination claim, namely no evidence of a statutorily defined disability. Most notably, the Fourth Circuit stated that "carrying a weapon is not a statutorily defined major life activity under Louisiana law and, thus, the plaintiffs' claim is not covered under the statutes relevant to a disability discrimination claim." Id., 774.
We find that answering a telephone is not a major life activity. LDR presented evidence that Ms. Northern answered the phones in the call center for two years without accommodation. When her migraines and seizures became problematic, she was allowed to work offline for a period of time longer than the typical rotation for a Tax Analyst; but, since Ms. Northern is not statutorily disabled, that accommodation was not required. When asked to go back to her regular duties, Ms. Northern requested more accommodations. LDR was within its rights to deny those accommodations.
After the accommodation was revoked, any inability or unwillingness on the part of Ms. Northern to answer phones for a full work day, which was the principal job requirement of a Tax Analyst, was simply her refusal to perform her required job duties. According to Ms. Northern, the call center phones came online at 8:00 a.m. and were active "all day long." Answering phones for only one hour a day, when Ms. Northern, a Tax Analyst II, was required to answer phones for 95% of a work day that began at 8:00 a.m. and lasted for eight hours, clearly does not satisfy those job requirements.
Ms. Northern did not present evidence at the hearing to refute the evidence presented by LDR. LDR met its burden of proof on its motion for summary judgment, and Ms. Northern failed to prove that there was a genuine issue of material fact for which a trial on the merits was warranted.
As we find that Ms. Northern is not statutorily disabled under Louisiana law, we pretermit discussion of her assignments of error pertaining to harassment and retaliation due to a disability. Furthermore, the assignment of error as to whether she provided sufficient notice pursuant to La. R.S. 23:303 is moot, since we have found that LDR's actions do not amount to discrimination.
Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress (IIED) was adopted as a viable cause of action in White v. Monsanto Co., 585 So.2d 1205, 1209 (La. 1991):
[I]n order to recover for intentional infliction of emotional distress, a plaintiff must establish (1) that the conduct of the defendant was extreme and outrageous; (2) that the emotional distress suffered by the plaintiff was severe; and (3) that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct.
The conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Persons must necessarily be expected to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. Not every verbal encounter may be controverted into a tort[.]
The extreme and outrageous conduct may arise from an abuse by the actor of a position, or a relationship with the other, which gives him actual or apparent authority over the other, or power to affect his interests. White, at 1209-10. Liability does not attach where the actor has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional distress. Thus, disciplinary action and conflict in a pressure-packed workplace environment, although calculated to cause some degree of mental anguish, is not ordinarily actionable. Recognition of a cause of action for intentional infliction of emotional distress in a workplace environment has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time. Id., at 1210; See Richardson v. Home Depot USA, 2000-0393, (La. App. 1 Cir. 3/28/01), 808 So.2d 544, 548.
Disciplinary review, the assigning of difficult tasks, and the reassigning of employees to more stressful positions is well within the purview of LDR as Ms. Northern's employer, and these actions in and of themselves do not rise to a level of outrageous conduct under White. Ms. Northern's termination or even the possibility of her termination cannot be construed as IIED, as at-will employment has a strong presence in Louisiana law and jurisprudence. See La. C.C. art. 2747; May v. Harris Management Corp., 2004-2657 (La. App. 1 Cir. 12/22/05), 928 So.2d 140, 145. Following White's factors, we do not find any actions by LDR or its employees to be extreme or outrageous, intending to cause any emotional distress for Ms. Northern. This assignment of error lacks merit.
DECREE
The summary judgment of the 19th JDC in favor of the appellee, the State of Louisiana through the Louisiana Department of Revenue, dismissing the petition of Catrina Northern with prejudice, is affirmed. All costs of the appeal are assessed to Catrina Northern.
AFFIRMED.