OF CERTIORARI TO THE COURT OF APPEAL, FIRST CIRCUIT, PARISH
OF EAST BATON ROUGE
suit for alleged age discrimination was instituted by
plaintiff, James Robinson, against his employer, the Board of
Supervisors for the University of Louisiana System
(ULL). We granted this writ of
certiorari to review the district court's judgment in
accordance with a jury verdict finding that ULL discriminated
against Robinson based on his age and awarding him damages.
After reviewing the record of these proceedings, as to
liability, we find no legal or manifest error in the
jury's verdict in favor of plaintiff; thus, we affirm the
jury's finding of age discrimination in favor of
Robinson. However, as to damages, we find that the amount of
the jury's damage award of $367,918.00 is not supported
by the record. Therefore, we amend the judgment in part and
affirm the jury's damage award as amended herein.
AND PROCEDURAL HISTORY
1971, James Robinson, at the age of twenty-seven, was hired
at the University of Southwestern Louisiana, presently the
University of Louisiana at Lafayette (ULL), defendant herein,
in the security department, which later became the campus
police department. In 1980, Officer Robinson was promoted by
Police Chief Joey Sturm and obtained the rank of Captain, the
second highest rank in the chain of command of the ULLPD.
Captain Robinson was appointed ULL police department (ULLPD)
evidence custodian in 1999 by Chief Sturm, and, in that
capacity, he was solely responsible for the contents of the
2002, Chief Sturm left the ULLPD and pursued other employment
opportunities. During Chief Sturm's absence, from 2002
until his subsequent return to the ULLPD in 2009, Captain
Robinson served as Interim Chief on three separate occasions.
Near the end of 2010, Joey Sturm returned to ULL, again as
campus police chief. At the direction of Chief Sturm, the
ULLPD began to implement organizational and policy
changes. In keeping with Louisiana
Civil Service Requirements, many ULLPD officers received
salary and rank increases. Captain Robinson benefitted as a
result thereof and was promoted by Chief Sturm to Police
Major A, continuing as the second highest in the chain of
command of the ULLPD, effective October 27, 2010. Major
Robinson was then sixty-six years of age and the oldest ULLPD
employee, with most of the employees being in their early
the end of 2010, O.K. Allen Hall, the building housing the
evidence room, was scheduled to undergo renovations. Plans
were made for the contents of the evidence room to be
physically relocated to a new facility. In December 2010,
Chief Sturm directed Major Robinson to conduct an audit of
the contents of the evidence room prior to its relocation.
Once accomplished, the evidence room custodian duty was to be
transferred from Major Robinson to Officer Billy Abrams. The
evidence room had been located in O.K. Allen Hall since 1999,
and its relocation was a significant undertaking. Major
Robinson requested the assistance of Officer Daniel Mendoza
to accomplish the move to the new facility known as the
end of 2010, the ULLPD evidence room had been relocated to
the Creamery; however, the audit had not been done. In March
2011, Major Robinson received an unsatisfactory work
performance evaluation from Chief Sturm, his first negative
evaluation since beginning his employment with ULLPD back in
1971. Also in March 2011, Major Robinson's duties as
custodian of the evidence room were taken from him and given
to Officer Abrams, a lower ranking officer. On March 15,
2011, Chief Sturm recommended to the ULL Vice President of
Student Affairs, Dean Edward Pratt, that disciplinary action
be taken against Major Robinson, citing insubordination in
failing to follow direct orders relative to the audit and
transfer process of the evidence room. Chief Sturm agreed to
reduce his recommendation of a five-day suspension to a
three-day suspension, given Major Robinson's past work
history, after discussions with ULL's Human Resource
Director, Charlene Hamilton.
Robinson executed the requisite paperwork on May 9, 2011,
certifying his intent to retire effective July 15, 2011.
Subsequently, Chief Sturm's proposed disciplinary action
was rescinded upon Major Robinson certifying his retirement
Robinson became the subject of an internal affairs
investigation in May 2011 over alleged missing evidence.
Chief Sturm instituted the internal affairs investigation,
which was to be conducted by Lieutenant Michael Louviere,
ULLPD's Investigative Lieutenant. Lieutenant
Louviere's investigation substantiated misconduct for
unsatisfactory performance on the part of Major Robinson.
Chief Sturm drafted a letter to Major Robinson in June 2011
advising him of the internal investigation findings. The
letter was forwarded to the Human Resources Department (HR);
however, disciplinary action was withheld due to Major
Robinson's retirement effective July 15, 2011.
Robinson was given a new assignment by Chief Sturm to patrol
the Primate Research Center (Primate Center) in New Iberia,
Louisiana, on May 23, 2011. This new assignment as a
patrolman was not in conformity with Major Robinson's
classification as a Police Major A, although his salary
Robinson retired on July 15, 2011. By the time of his
retirement, Major Robinson had been employed at ULL for forty
years and was sixty-seven years old.
August 2012, Major Robinson filed the present suit for
damages based upon age-based employment discrimination by the
ULLPD under both federal and state law. Following a trial by
jury, a verdict was rendered in favor of Major Robinson for
$367,918.00. A judgment was signed by the district court in
conformity with the jury verdict, and Major Robinson was
awarded attorney fees and court costs. That verdict was
appealed to the First Circuit Court of Appeal, which affirmed
the jury verdict finding that Major Robinson had successfully
established a prima facie case of age discrimination.
Additionally, the appellate court found that the jury
permissibly rejected ULL's proffered legitimate,
non-discriminatory reason for its actions and found that a
rational fact-finder could conclude that the action was
discriminatory. Robinson v. Bd. of Supervisors for Univ.
of La. Sys., 15-1717 (La.App. 1 Cir. 11/4/16), 208 So.3d
511 (Chutz, J., dissents and assigns reasons). ULL then filed
an application for certiorari with this Court, which was
granted by order of February 3, 2017. Robinson v. Bd. of
Supervisors for Univ. of La. Sys., 16-2145 (La. 2/3/17),
___ So.3d ___.
trial court's findings of fact may not be reversed unless
they are manifestly erroneous or clearly wrong. Stobart
v. State of Louisiana, through Dep't Transp. &
Dev., 617 So.2d 880, 882 (La.1993). The issue to be
resolved by a reviewing court is not whether the jury was
right or wrong, but whether the conclusion reached was a
reasonable one. Id. When there is conflict in the
testimony, a jury's reasonable evaluations of credibility
and reasonable inferences of facts should not be disturbed,
even though an appellate court may feel that its own
evaluations and inferences are reasonable. Id. The
reviewing court must remain mindful that if the
"jury's findings are reasonable in light of the
record reviewed in its entirety, the court of appeal may not
reverse, even if convinced that had it been sitting as the
trier of fact, it would have weighted the evidence
differently." Id. at 882-83 (citing Housley
v. Cerise, 579 So.2d 973 (La.1991)) (quoting Sistler
v. Liberty Mut'l Ins. Co., 558 So.2d 1106, 1112
(La.1990)). Additionally, where there are two permissible
views of the evidence, the jury's choice between them
cannot be manifestly erroneous or clearly wrong. Id.
(citing Canter v. Koehring Co., 283 So.2d 716
Court has repeatedly emphasized the deference due to the
trier of fact, stating:
[A]n appellate court on review must be cautious not to
re-weigh the evidence or to substitute its own factual
findings just because it would have decided the case
[w]hen 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. Where documents or objective evidence so contradict the
witness's story, or the story itself is so internally
inconsistent or implausible on its face, that a reasonable
fact finder would not credit the witness's story, the
court of appeal may well find manifest error or clear
wrongness even in a finding purportedly based upon a
credibility determination. But where such factors are not
present, and a factfinder's finding is based on its
decision to credit the testimony of one of two or more
witnesses, that finding can virtually never be manifestly
erroneous or clearly wrong.
Rosell, 549 So.2d at 844-45 (citations omitted).
While we understand and appreciate the reality that many
times we would have judged the case differently had we been
the trier of fact, this is not our function as a reviewing
court. Menard v. Lafayette Ins. Co., 09-1869, p. 21
(La.3/16/10), 31 So.3d 996, 1011.
Hayes Fund for First United Methodist Church of Welsh,
LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592,
pp. 9-10 (La. 12/8/15), 193 So.3d 1110, 1116.
Robinson's claims of age discrimination are based upon
alleged violations of 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, which make it unlawful for
an employer to discharge any individual or otherwise
discriminate against an individual with respect to
compensation, or terms, conditions, or privileges of
employment because of the individual's age. 29 U.S.C.
§ 623; La.R.S. 23:312(A)(1). Because the LADEA "is
identical to the federal statute prohibiting age
discrimination, Louisiana courts have traditionally looked to
federal case law for guidance." LaBove v.
Raftery, 00-1394, 00-1423, p. 9 (La. 11/28/01), 802
So.2d 566, 573 (footnote omitted).
the burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817
(1973), in order to establish a prima facie case of
employment discrimination based on age, a plaintiff must
prove that: (1) he was discharged; (2) he was qualified for
the position; (3) he was within the protected class at the
time of discharge or demotion; and (4) he was either (i)
replaced by someone outside the protected class, (ii)
replaced by someone younger, or (iii) otherwise discharged
because of his age. Eastin v. Entergy Corp.,
09-0293, p. 34 (La.App. 5 Cir. 7/27/10), 42 So.3d 1163,
1185-86 (citing McDonnell Douglas, 411 U.S. at 802,
93 S.Ct. at 1824). The establishment of a prima facie case
raises an inference of unlawful discrimination. Id.
at 1186 (citing Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000)).
plaintiff can establish a prima facie case, the burden shifts
to the defendant to articulate a legitimate,
non-discriminatory purpose for the adverse employment action.
Id. (citing Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093
(1981)) (quoting McDonnell Douglas, 411 U.S. at 802,
93 S.Ct. at 1824). The defendant must point to admissible
evidence in the record, but the burden is one of production,
not persuasion. Id. (citing Texas Dep't of
Cmty. Affairs, 450 U.S. at 254, 101 S.Ct. at 1094-95).
defendant satisfies its burden of production, the burden
shifts back to the plaintiff to show that any
non-discriminatory reasons articulated by the employer are
not true reasons, but only pretexts. Id. (citing
Texas Dep't of Cmty. Affairs, 450 U.S. at 253,
101 S.Ct. at 1093); McDonnel Douglas, 411 U.S. at
804, 93 S.Ct. at 1825. This may be accomplished either
directly, by showing that a discriminatory reason more than
likely motivated the employer, or indirectly, by showing that
the asserted reason is unworthy of credence. Eastin,