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Dobyns v. University of Louisiana System

Court of Appeals of Louisiana, First Circuit

April 12, 2019

Sally Dobyns
v.
University of Louisiana System, University of Louisiana at Lafayette

          Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 607, 915 Section 27 The Honorable Todd W. Hernandez, Judge Presiding

          Jeffrey M. Landry Attorney General Baton Rouge, Louisiana ATTORNEYS FOR APPELLANT DEFENDANT-The Board of Supervisors for the University of Louisiana System

          Patrick B. McIntire Stephen J. Oats Michael L. Barras Special Assistant Attorneys General Lafayette, Louisiana Jill L. Craft Baton Rouge, Louisiana ATTORNEY FOR APPELLEE PLAINTIFF-Dr. Sally Dobyns

          Before: Welch, Chutz, and Lanier, JJ.

          WELCH, J.

         This action commenced with a suit for damages filed by the plaintiff, Dr. Sally Dobyns, against her former employer and the defendant herein, the Board of Supervisors for the University of Louisiana System on behalf of The University of Louisiana at Lafayette (the "Board"), wherein Dr. Dobyns alleged disability-based harassment and denial of accommodations in violation of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12101-11217, and the Louisiana Employment Discrimination Law ("LEDL"), La. R.S. 23:301, et seq., and retaliation in violation of the ADA and the Louisiana whistleblower statute, La. R.S. 23:967. Following a jury trial, the jury rendered its verdict in favor of Dr. Dobyns and against the Board on her retaliation claim and awarded damages to Dr. Dobyns in the amount of $25, 000.00. In this appeal, the Board challenges the trial court's September 18, 2017 judgment rendered in accordance with the jury's verdict. For the following reasons, we affirm.

         In a related, pending appeal-2018 CA 0488-Dr. Dobyns challenges the trial court's ruling that granted the Board's motion to dismiss her claim for attorney's fees with prejudice.

         Facts and Procedural History

         In August 1992, Dr. Dobyns was hired as an Assistant Professor at the University of Louisiana at Lafayette ("UL"). Dr. Dobyns was subsequently promoted to Associate Professor, then Full Professor, and finally, appointed as Director of the Center for Gifted Education and the Coordinator for the Master of Education ("M.Ed.") Program in Gifted Education.

         Dr. Dobyns alleged that at all times pertinent hereto, she was a qualified individual with a disability within the meaning and intent of the ADA and the LEDL in that she had an actual impairment, had a record of impairment, and was regarded by the Board as disabled. Dr. Dobyns alleged that she suffered from severe allergies due to the many environmental allergens in south Louisiana, which resulted in a compromised immune system. Dr. Dobyns contended that on January 31, 2008, she advised the Board of her disability and that UL's then-acting Vice-President of Academic Affairs, Dr. Stephen Landry, made recommendations for a plan of action to accommodate her disability that still allowed her to fulfill her academic duties at UL.

         Thereafter, on October 15, 2008, Dr. Dobyns submitted a written request, styled as a request for accommodations ("Request for Reasonable Accommodations for Physical Disability"), to Dr. Landry, attaching letters from her treating physicians who recommended that during the winter months (i.e., December through February), she be allowed to work in a northern, non-pollinating climate in order to allow her compromised immune system to rest and reset. Dr. Dobyns included a plan for the ways that she would be able to fulfill her responsibilities to UL during the time she was away, including alternative scheduling augmented by distance learning options to meet the requirements for her courses. Dr. Dobyns stated that her department head, Dr. Christine Briggs, approved her proposed accommodation.

         On November 24, 2008, Dr. Landry responded in writing to Dr. Dobyns's request, stating: "It is my understanding that you are requesting sick leave because of your documented medical conditions and hence you must apply for and document sick leave[, ] which will be approved based upon both your accumulated hours of sick leave and the physician statements provided," and included an excerpt of the UL Faculty Handbook's "Policy on Utilization of Sick or Annual Leave."

         According to her petition, Dr. Dobyns alleged that the Board accommodated her disability by allowing her to work from Connecticut during the winter months, where she was able to fulfill all of her responsibilities to UL, beginning in December 2008, without taking sick leave. Dr. Dobyns departed for Connecticut on November 26, 2008, without authorization from the Board to be absent from campus and without taking sick leave.

         Dr. Dobyns claimed that her accommodation continued until Dr. Carolyn Bruder became Interim Vice-President of Academic Affairs at UL in January 2011. In January 2011, Dr. Dobyns submitted a request for compensation for the summers of 2009 and 2010. On February 14, 2011, she received an email from Dr. Bruder questioning her absence from the UL campus and why she had not applied for sick leave. In May 2011, Dr. Dobyns met with Dr. Bruder (along with Dr. Briggs), wherein Dr. Bruder informed Dr. Dobyns that her pay for the summers of 2009 and 2010 would be reduced for work Dr. Dobyns alleged she had already completed and for compensation that had already been approved. Dr. Dobyns claimed the reason given to her by Dr. Bruder was that she "had not been present" on the UL campus.

         After repeatedly reporting what she alleged as disability-based harassment, denials of her repeated requests for continued accommodations, and retaliation, Dr. Dobyns filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC") and the Louisiana Commission on Human Rights ("LCHR") on August 12, 2011, wherein she claimed:

Since May 2, 2011, I have been subjected to harassment, ridicule, and treatment different than others in the presence of my colleagues and Department Head, by Dr. Carolyn Bruder, Interim Vice President for Academic Affairs. ... I have also been denied accommodations for my disability [handwritten].
According to Dr. Carolyn Bruder, she did "not agree with the rate of reimbursement" for summer work already approved and performed (as far back as the year 2000.)[.]
I believe that I have been discriminated against in violation of the Americans with Disabilities Act of 1990 (ADA) due to disability; and retaliation for opposing practices made unlawful under Title VII of the Civil Rights Act of 1964, as amended.[1]

         Thereafter, on August 15, 2011, Dr. Gerald Carlson, Dean of the College of Education, informed Dr. Dobyns that she was being removed from her position as Director of the Center for Gifted Education.

         Dr. Dobyns subsequently filed suit against the Board on December 22, 2011.[2] Specifically, Dr. Dobyns alleged disability-based harassment and failure to accommodate in violation of the ADA and the LEDL, and retaliation in violation of the ADA and La. R.S. 23:967, in response to her complaints and protests that began in early 2011, when Dr. Bruder became Interim Vice-President for Academic Affairs at UL. Dr. Dobyns retired from UL in July 2013.

         Following a six-day jury trial held February 6-13, 2017, the jury issued its verdict on February 13, 2017, in favor of Dr. Dobyns and against the Board on her retaliation claim and awarded damages to Dr. Dobyns in the amount of $25, 000.00.

         The trial court signed a judgment on September 18, 2017, [3] on the jury verdict, the damages award, attorney's fees, and costs, which decreed:

IT IS ORDERED, ADJUDGED AND DECREED that Judgment in accordance with the Jury Verdict be and is hereby rendered in favor of Plaintiff, Sally Dobyns, and against Defendant, the Board of Supervisors for the University of Louisiana System for unlawful retaliation.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that there be a judgment against Defendant and in favor of Plaintiff for compensatory damages in the amount of Twenty Five Thousand and No/100 Dollars ($25, 000.00) together with legal interest from the date of judicial demand until paid.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the determination of the amount of attorney's fees and costs to which Plaintiff may be entitled is excluded from this Final Judgment, which is a final judgment in all other respects, and that this Court shall retain jurisdiction to determine the issue of attorney's fees and costs.

         On September 21, 2017, the trial court signed another judgment on the jury verdict, the damages award, court costs, and the Board's motion to dismiss Dr. Dobyns's claim for attorney's fees, which decreed:

IT IS ORDERED, ADJUDGED AND DECREED that Final Judgment in accordance with the Jury Verdict be and is hereby rendered in favor of Plaintiff, Sally Dobyns, and against Defendant, the Board of Supervisors for the University of Louisiana System, in the amount of TWENTY-FIVE THOUSAND and NO/100 ($25, 000.00) DOLLARS, together with interest at 6% per annum from the date service was requested following the judicial demand until the date of this Final Judgment, as provided in R.S. 13:5112(C), and thereafter at the rate fixed by R.S. 9:3500.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Court Costs be and are hereby taxed against Defendant, the Board of Supervisors for the University of Louisiana System, and, in accordance with R.S. 13:5112(A) are hereby set at $11, 958.57.
In further consideration of Defendant's post-trial Motion to Dismiss Plaintiffs Claim for Attorney's Fees, argued on June 12, 2017 by Crystal Bounds for the Plaintiff and Patrick McIntire for the Defendant, and in accordance with written reasons issued on July 18, 2017:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that Defendant's Motion to Dismiss Plaintiffs Claim for Attorney's Fees be and is hereby GRANTED, dismissing Plaintiffs claim for attorney's fees with prejudice, and with each party to bear their own respective costs on that Motion, set as $28.00 for Plaintiff and $55.00 for Defendant.

         The Board filed a motion for new trial or judgment notwithstanding the verdict ("JNOV") of the September 18 and 21, 2017 judgments regarding the jury verdict.[4] Following a hearing, the trial court denied the Board's motion for new trial or JNOV and vacated its September 21, 2017 judgment. Thereafter, the Board filed a motion and order for a suspensive appeal of the September 18, 2017 judgment regarding the jury verdict.

         Rule to Show Cause; Timeliness of Appeal

         Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue, and we are obligated to recognize any lack of jurisdiction if it exists. Quality Envtl. Processes, Inc. v. Energy Dev. Corp., 2016-0171 (La.App. 1 Cir. 4/12/17), 218 So.3d 1045, 1052-53. After the instant appeal was lodged, this court issued a rule to show cause ordering the parties to file briefs discussing why the instant appeal should not be dismissed because "[i]t appears that the Motion for [Suspensive] Appeal was filed untimely." The show cause order was referred to this merits panel by an interim order dated November 13, 2018.

         The trial court rendered judgment in favor of Dr. Dobyns and against the Board on September 18, 2017. Louisiana Code of Civil Procedure article 1974, governing the delay for applying for a new trial, provides:

The delay for applying for a new trial shall be seven days, exclusive of legal holidays. The delay for applying for a new trial commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment as required by Article 1913. [Emphasis added.]

         Article 1913(A), governing notice of judgment, provides:

Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.

         According to La. C.C.P. art. 1913(A), notice of the signing of a final judgment is required in all contested cases and shall be mailed by the clerk of court to the counsel of record for each party. Carter v. C & M Freightliner, LLC, 2011-2184 (La.App. 1 Cir. 8/15/12), 97 So.3d 1191, 1194. Article 1913(D) requires the clerk to file a certificate in the record showing the ...


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