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Olson v. City of Baton Rouge/Parish of East Baton Rouge

Court of Appeals of Louisiana, First Circuit

June 21, 2019


          On Appeal from the Nineteenth Judicial Trial Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. C613036 Honorable Timothy E. Kelley, Judge Presiding.

          Robert N. Aguiluz Counsel for Plaintiff/Appellant Baton Rouge, Louisiana Lisa Olson

          Dawn N. Guillot Counsel for Defendant/Appellee Baton Rouge, Louisiana City of Baton Rouge/Parish of East Baton Rouge,


          McClendon, J.

         The plaintiff appeals a trial court judgment that granted defendant's motion for summary judgment, treating it as an exception of prescription. For the reasons that follow, we reverse and remand to the trial court with instructions.


         The plaintiff, Lisa Olson, was employed by the City of Baton Rouge/Parish of East Baton Rouge (the City/Parish) in the Department of Emergency Medical Services (EMS). Mrs. Olson contends that while employed she received a letter from the City/Parish dated May 15, 2007, demoting her from the position of Prison Healthcare Manager to the position of Assistant EMS Business Manager. It is undisputed that Mrs. Olson timely appealed her demotion to the Personnel Board (the Board), and the Board scheduled a hearing in the matter.[1] The Board was unable to complete the hearing in one day, and a second day was scheduled for March 27, 2008. Thereafter, because the parties believed they had reached a settlement, the March 27, 2008 hearing date was cancelled.

         However, due to the parties' failure to confect a settlement agreement, the City/Parish scheduled a hearing for October 16, 2008, to enforce said settlement agreement.[2] That hearing date was cancelled, and no further actions were taken by any party for approximately three years and seven months until June 19, 2012, when Mrs. Olson filed her petition for damages against the City/Parish and the Personnel Board (collectively the City/Parish).

         In her petition, Mrs. Olson asserted that, despite her request, the City/Parish failed and refused to reschedule the remainder of her hearing after negotiations for a settlement failed. She contended that pursuant to the home rule charter for the City/Parish and the rules governing classified service, the City/Parish was obligated to provide her with the appeal hearing. Mrs. Olson also maintained that because she continued to remain in a lower ranking position at a lower pay grade, she has suffered damages in the form of lost wages and retirement benefits. According to Mrs. Olson, because she was denied her appeal hearing, she was denied due process of law guaranteed by the United States Constitution and the State of Louisiana. Therefore, Mrs. Olson requested that the trial court issue a judgment ordering the City/Parish to provide her with a hearing and for all damages incurred as a result of the City/Parish's violation of its Home Rule Charter and rules governing classified service.[3]

         The City/Parish answered the petition and specifically asserted that Mrs. Olson's claims were "abandoned and/or prescribed due to the failure of the plaintiff to take any action whatsoever to pursue her claims to the Personnel Board and in any other appropriate jurisdiction." Thereafter, on May 12, 2016, the City/Parish filed a motion for summary judgment, asserting that there was no genuine issue as to material facts and that they were entitled to judgment as a matter of law. Following a hearing on September 9, 2016, the trial court treated the motion for summary judgment as ``a motion to dismiss on the grounds of abandonment and/or prescription" and granted same. The trial court signed a judgment on October 5, 2016, dismissing Mrs. Olson's claims with prejudice. Mrs. Olson has appealed.


         After an opportunity for adequate discovery, a motion for summary judgment is properly granted if the motion, memorandum, and supporting documents, show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966A(3). The mover bears the burden of proving that he is entitled to summary judgment. However, if the mover will not bear the burden of proof at trial on the subject matter of the motion, he need only demonstrate the absence of factual support for one or more essential elements of his opponent's claim, action, or defense. LSA-C.C.P. art. 966D(1). If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense, then the nonmoving party must produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.[4] LSA-C.C.P. art. 966D(1); Holmes v. Lea, 17-1268 (La.App. 1 Or. 5/18/18), 250 So.3d 1004, 1009.

         Although typically asserted through the procedural vehicle of the peremptory exception, the defense of prescription may also be raised by motion for summary judgment. Hogg v. Chevron USA, Inc., 09-2632 (La. 7/6/10), 45 So.3d 991, 997. When prescription is raised by motion for summary judgment, review is de novo, using the same criteria used by the trial court in determining whether summary judgment is appropriate. Id.

         In her appeal, Mrs. Olson concedes that this matter came before the trial court solely as a mandamus action. She contends that the trial court erred in finding that her personnel action and mandamus action were prescribed or abandoned and, further, that the trial court lacked authority to declare that her personnel action pending before the personnel board had prescribed or had been abandoned. In contrast, the City/Parish maintains that any duty owed by the Board to Mrs. Olson was fulfilled when it scheduled her hearing and was subsequently extinguished when Mrs. Olson "voluntarily dismissed" the matter before the Board in 2008. The City/Parish also contends that Mrs. Olson did not ask the Board to reset the matter and took no action for more than three years.

         In connection with the motion for summary judgment, the City/Parish submitted the affidavit of Dr. Annette Bookter and Mrs. Olson's responses to discovery requests filed by the City/Parish. Mrs. Olson filed no opposition to the motion for summary judgment.

         Dr. Bookter testified in her deposition that she is the Director of Human Resources for the City/Parish. She stated that, pursuant to the City/Parish's plan of government, she is also the secretary for the Personnel Board. In that capacity, Dr. Bookter handles administrative matters for the Board and is responsible for notifying employees of their right to appeal to the Personnel Board. With regard to Mrs. Olson's case, Dr. Bookter stated that she was not involved, but had her staff gather the documentation for her review. Dr. Bookter testified that her records indicated that the hearing was not completed after the first day, the Board was subsequently notified that the case had settled, and it was not rescheduled for another hearing date. Dr. Bookter also stated that her documentation established that a hearing was scheduled for October 16, 2008, but that the City/Parish withdrew its request to go before the Board.

         With regard to Mrs. Olson's discovery responses, Mrs. Olson was asked to identify all actions or efforts she made in pursuing the appeal and to produce any and all documents showing her actions. In her Answer to Discovery, Mrs. Olson gave the same answer to both requests:

None. Per the City of Baton Rouge/Parish of East Baton Rouge's Plan of Government and rules of its civil service board, the only request for hearing that must be made is the one in the Original appeal. Dr. Annette Bookter, defendant's Human Resources Director during the time in question, testified that defendant's Human Resources Department schedules the hearing without any request from the appellant.

         Thereafter, on September 8, 2016, the day prior to the hearing on the motion for summary judgment, the parties entered into the following joint stipulations:

1. The second day of testimony of the Lisa Olson hearing before the Personnel Board was scheduled for March 27, 2008.
2. The date was cancelled by mutual agreement of counsel for Mrs. Olson and for the City because the parties believed they ...

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