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Soulier v. Hood Container of Louisiana, L.L.C.

Court of Appeals of Louisiana, First Circuit

September 27, 2019


          Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. C648814 The Honorable R. Michael Caldwell, Judge Presiding

          S. Mark Klyza Alexander C. Landin New Orleans, Louisiana Counsel for Defendant/Appellant/ Cross -Appellee Hood Container of Louisiana, L.L.C.

          Charlotte C. McDaniel McGehee Baton Rouge, Louisiana Counsel for Plaintiff/Appellee/ Cross -Appellant Joseph Soulier


          THERIOT, J.

         This suit arises from the termination of an employee while he was on Family and Medical Leave Act[1] ("FMLA") leave. After a trial on the merits, both the former employer and the former employee appealed. For the reasons that follow, we affirm.


         Joseph Soulier, a United States Army combat veteran and former member of the Louisiana National Guard, [2] was employed by Hood Container of Louisiana, L.L.C ("Hood") as a mechanic at its facility in St. Francisville, Louisiana since September 2, 2014.[3] On September 11, 2015, Soulier was diagnosed with posttraumatic stress disorder (PTSD)[4] related to his prior military service. At this time, Michelle Scott, Hood's Human Resources Manager, provided him with the necessary paperwork to apply for FMLA leave. Soulier returned the completed paperwork to Scott on January 25, 2016, and he was approved for intermittent FMLA leave on January 26, 2016.[5] The FMLA certification stated that Soulier would need to miss work on an intermittent basis for PTSD flare-ups, which generally occurred in response to psychological stressors.

         On April 19, 2016, Soulier, who was in the midst of a divorce and custody dispute, allegedly threatened to kill his ex-wife and himself. The police were notified of the threat, and Soulier was placed under a 72-hour hold at Our Lady of the Lake Regional Medical Center in Baton Rouge. Due to the hospitalization, Soulier did not report to work on April 20, 2016. Soulier's brother Jeremy, who also worked for Hood, informed Soulier's supervisor, Mitchell Harrell, of the situation and told him that Soulier had been hospitalized and would be absent from work. Harrell told Jeremy that he would inform Scott, the Human Resources Manager, of the situation, but that Jeremy needed to speak to her also. That same day, Harrell told Scott about the threat that Jeremy had reported to him and that Soulier was being held at an undisclosed facility for 72 hours. Harrell also told Scott that he had instructed Jeremy to contact Scott regarding his brother's absence. Jeremy denied this, insisting that Harrell told him he would speak to Scott for him. Nevertheless, it is undisputed that Jeremy and Scott never discussed Soulier's absence.

         On April 22, 2016, Jeremy began hearing rumors at work concerning Soulier's absence. According to Jeremy, employees at the facility were saying that Soulier had been fired for threatening to kill everyone at the Hood facility, and Jeremy was told that this rumor had been discussed at a workplace safety meeting. The same rumors were later repeated to Soulier by Hood employees and others in the industry.

         Soulier remained hospitalized for almost two weeks. Although he was allowed limited telephone access during the latter part of his hospitalization, he did not attempt to contact anyone at Hood because he believed that they had been informed of his hospitalization, that he was on FMLA leave, and that there were no problems with his employment. Despite the fact that Scott had recently approved Soulier's intermittent FMLA leave for PTSD flare-ups, she denied understanding that his absence was related to PTSD. According to Scott, she assumed, based on the information she had received from Harrell, that Soulier had been arrested for making threats against his ex-wife.

         Scott made one unsuccessful attempt to reach Soulier by telephone at the numbers listed in his personnel file, which were not working numbers. Thereafter, Scott consulted with John Langston, Hood's corporate Human Resources Director, about the situation. Scott informed Langston that Soulier had been absent from work without calling in for several days, but did not mention that Soulier had recently been approved for intermittent FMLA leave. At Langston's direction, Scott sent Soulier a certified letter on April 26, informing him that he would be terminated due to job abandonment if he did not contact Human Resources by April 29. When no response was received, Soulier was terminated and his insurance was cancelled effective April 30.

         Although Soulier was still hospitalized and was not aware of the letter or his subsequent termination, his father signed for the certified letter on his behalf on May 2, 2016. After reading the letter, Soulier's mother, Cynthia, called Scott to inquire about the validity of the letter, given that it had not even been received by the April 29 deadline and that Soulier had been approved for intermittent FMLA leave for the condition for which he was hospitalized. Despite being informed of the circumstances, Scott maintained that the decision to terminate Soulier for job abandonment was a "corporate decision." Because Soulier was still hospitalized at this time, Cynthia contacted Soulier's divorce attorney for assistance in communicating with Hood regarding his employment and FMLA leave. After Soulier's attorney spoke with Langston and supplied requested documentation regarding Soulier's hospitalization, Langston agreed to look into the matter over the next four or five days "to see if there was anything we could do."

         Soulier was discharged from the hospital on May 4. Although he was released to return to work by his doctors on May 6, his attorney informed him that Hood was investigating his employment status, so Soulier did not report to work at that time. While awaiting a decision from Hood, Soulier was not being paid. He was offered the opportunity to make some money at a "side job." In order to do the work, Soulier needed his personal tools, which were still on Hood's premises. In the early evening on May 11, Soulier went to Hood's facility to retrieve his tools, but the security guard would not let him past the main gate. Soulier was eventually told that his tools were locked up in the Human Resources Department and he would have to return during normal business hours to retrieve them. Soulier became extremely angry and began yelling and cursing at the security guard and Hood employees. The West Feliciana Parish Sheriffs Office was eventually called, and Soulier was told to leave the premises and not return. Following this altercation, Langford informed Soulier's attorney that his aggressive, hostile, out-of-control behavior while trying to retrieve his tools made him a safety concern for the facility, and he would not be reinstated.

         Soulier filed a petition for damages against Hood and his supervisor, Harrell, seeking damages for his unlawful termination in violation of the FMLA and the Uniformed Services Employment and Reemployment Rights Act ("USERRA"), [6]as well as for the dissemination of false information regarding his alleged threat to "shoot up" the Hood facility. Hood and Harrell raised a number of affirmative defenses, including that Soulier had failed to mitigate his alleged damages and that, based on evidence acquired after suit was filed, Soulier would have been terminated anyway due to his threatening behavior and threats of violence.[7]

         Hood and Harrell filed a motion for summary judgment, and on August 24, 2017, the trial court granted summary judgment dismissing Soulier's claims for defamation and violations of the Louisiana Military Service Relief Act/USERRA and dismissing Harrell as a party from the suit. The trial court denied the motion insofar as it sought to dismiss Soulier's claims against Hood for wrongful discharge in violation of the FMLA.

         Hood filed a motion in limine prior to trial, seeking to prevent Soulier from testifying or introducing any evidence at trial about his efforts to mitigate his damages by obtaining comparable employment. Hood argued that since Soulier had consistently denied seeking other employment in response to discovery requests and in his deposition testimony, he should be prohibited from testifying about his recent self-employment at trial to show an attempt to mitigate his damages. The trial court ruled that Soulier would be allowed to testify, but the court would disregard any testimony that conflicted with Soulier's discovery responses and prior testimony.

         After the conclusion of the bench trial, the trial court found that Soulier's rights under the FMLA had been violated and rendered judgment awarding Soulier back pay of $150, 798.00, liquidated damages of $150, 798.00, attorney fees of $50, 000.00, expert witness fees of $2, 350.00, and court costs. The court denied Soulier's request for equitable relief in the form of front pay.

         Hood filed a suspensive appeal, arguing that the trial court erred in awarding lost wages, liquidated damages, and attorney fees and costs to Soulier, since he failed to mitigate his damages by exercising reasonable diligence to obtain comparable employment. Soulier filed a cross motion for devolutive appeal, assigning as error the trial court's award of statutory attorney fees and costs without an evidentiary hearing, denial of his request for front pay, and denial of his claims under the Louisiana Military Service Relief Act/USERRA.


         FMLA Claims

         The FMLA requires covered employers to provide eligible employees with up to twelve weeks of leave during any twelve-month period, if the employee has a serious health condition[8] that makes him unable to perform the functions of his position. 29 U.S.C. § 2612(a)(1)(D). This leave may be taken intermittently if medically necessary. 29 U.S.C. § 2612(b)(1). However, an employee taking intermittent leave is required to notify his employer as soon as practicable of his intent to take leave on particular dates if those dates were initially unknown. 29 C.F.R. § 825.302(a). Soulier was approved for intermittent FMLA leave for "flare-ups" of his PTSD prior to the absence that led to his termination. The notice of approval of Soulier's intermittent FMLA leave ...

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