LOUISE KALTENBAUGH, PH.D. AND KATHERNIE ROBINSON, PH.D.
BOARD OF SUPERVISORS, SOUTHERN UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE AT BATON ROUGE (SOUTHERN UNIVERSITY AT NEW ORLEANS CAMPUS) DAYANAND THANGADA, AUDREY S. MCGEE AND SHIRLEY A. WILLIAMS-SCOTT, PH.D.
BOARD OF SUPERVISORS, SOUTHERN UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE AT BATON ROUGE (SOUTHERN UNIVERSITY AT NEW ORLEANS CAMPUS)
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2006-04126,
DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE
M. Zanders, Sr. ATTORNEY AT LAW COUNSEL FOR
Winston G. DeCuir, Sr. DECUIR CLARK & ADAMS, L.L.P.
COUNSEL FOR DEFENDANT/APPELLANT
composed of Judge Terri F. Love, Judge Roland L. Belsome,
Judge Sandra Cabrina Jenkins
CABRINA JENKINS JUDGE.
consolidated appeals arise out of the decision by appellant,
the Board of Supervisors, Southern University and
Agricultural and Mechanical College at Baton Rouge (the
"Board"), to furlough its tenured professors at
Southern University at New Orleans ("SUNO")
following Hurricane Katrina. After a three day bench trial --
spanning a three-year period and presided over by two
different judges -- the trial court rendered a judgment
awarding damages to three plaintiffs who were wrongly
furloughed and not re-called. For the reasons that follow, we
affirm the trial court's August 14, 2018 judgment in
favor of plaintiffs. We deny plaintiffs' Answer to Notice
AND PROCEDURAL BACKGROUND
August 2005, SUNO sustained massive damage from Hurricane
Katrina. Thereafter, the Board adopted a Force Majeure
Exigency Plan ("Force Majeure Plan"), which applied
exclusively to the SUNO campus. The Board adopted these
policies in response to what it saw as the emergency and
unforeseeable circumstances which made continuation of
employment of faculty and staff, tenured and untenured,
classified and unclassified, impossible. Thus, the Board
adopted a "new streamlined program for SUNO which
allowed them to make only limited [job] offerings." The
program resulted in the elimination of 19 degree programs at
SUNO. Chief among those was SUNO's programs in Secondary
Education and Biology.
the "streamlined" program, the SUNO faculty was
reduced from a July 1, 2005 total of 163 employees to a May
2006 count of 92 active employees. The remainder either
voluntarily left or were placed on furlough. As of May 2006,
31 tenured teachers were placed on furlough and 10
voluntarily departed through resignation or
retirement. The enrollment at SUNO dropped from a
pre-Katrina level of about 3, 642 students to a January 2006
level of approximately 2, 080 students, 230 of which were
12, 2006, two furloughed SUNO professors, Louise Kaltenbaugh,
Ph.D., a tenured associate professor in the College of
Education; and Katherine Robinson, Ph.D, a tenured assistant
professor in the College of Education; sued the Board,
alleging violations of due process, and seeking a writ of
mandamus ordering that they be reinstated to their positions
at SUNO. The trial court denied the writ of mandamus on May
31, 2006, and this Court denied supervisory writs on August
5, 2006, Dayanand Thangada, Audrey McGee, and Shirley
Scott-Williams, Ph.D., filed a separate suit in Orleans
Parish Civil District Court alleging that SUNO had furloughed
them or not re-called them to work without due process, and
seeking damages and attorney's fees.
September 29, 2006, Dr. Robert Perry, a tenured faculty
member at SUNO who taught mathematics, biology, physics and
other science courses, joined the lawsuit with three
co-plaintiffs, Mr. Thangada, a tenured assistant professor in
the College of Business; Dr. Williams-Scott, a tenured full
professor in the Science Department; and Ms. McGee, a tenured
assistant professor in the Junior Division (collectively,
"Plaintiffs"). On April 8, 2013, the two suits were
consolidated by order of the court. On July 6, 2015, Dr.
Kaltenbaugh, Dr. Robinson, and Mr. Thangada filed a joint
motion to dismiss, advising the court that they had settled
or resolved their claims against the Board.
their Petitions, Plaintiffs contend that they were denied
their property rights of tenure by being
"furloughed" without pay or benefits, which was a
removal from their tenured positions. They allege that SUNO's
removal of Plaintiffs was an unconstitutional denial of due
process in violation of the Louisiana and United States
Constitutions. According to the Plaintiffs,
"procedurally there was not a proper and reasonable
hearing and the substantive directives for removal were
arbitrary and capricious, and not reasonably related to the
academic, financial, and professional protections afforded
tenured professors." Plaintiffs sought to be reinstated
to their positions as tenured professors, together with all
pay, benefits, and emoluments of their positions, as well as
damages for violation of their property rights and infliction
of emotional distress.
December 9 and 10, 2015, a bench trial was held before Judge
Lynn Luker, Judge Pro Tempore. Judge Luker's
appointment ended before a decision was rendered. On August
1, 2018, the trial was concluded before Judge Nakisha
Ervin-Knott after an additional day of testimony. On August
14, 2018, the trial court signed a judgment against the Board
and in favor of Dr. Perry, Dr. Williams-Scott, and Ms. McGee.
The trial court awarded loss of income damages measured at
each Plaintiffs salary for three years. Dr. Williams-Scott
was awarded $162, 618.00, Ms. McGee was awarded $135, 666.00,
and Dr. Perry was awarded $125, 277.00, plus judicial
interest and costs.
Board's motion for new trial was denied on September 24,
2018, and on October 22, 2018, the trial court signed an
order granting the Board a devolutive appeal. On January 3,
2019, pro se plaintiffs Ms. McGee and Dr. Williams-Scott
filed an Answer to Notice of Appeal, and the Board filed a
Reply and Opposition on March 27, 2019.
Board lists three assignments of error:
• The trial court erred in applying the law with regard
to due process and employment in an extreme disaster
• The trial court erred in setting aside the findings of
the University Hearing Officer and Chancellor that Plaintiffs
were to be furloughed and not recalled to work.
• The trial court erred in setting the quantum of
damages for the Plaintiffs at a loss of wages for three
• The trial court erred in not requiring Plaintiffs to
mitigate their damages.
Perry was employed at SUNO as an associate professor of
physics and mathematics, a tenured position. He was chairman
of the department of mathematics and physics for seven years.
Dr. Perry taught mathematics, physics, calculus, algebra,
number theory, physics of waves, acoustics, and
electromagnetic theory. Dr. Perry has a Ph.D. in physics from
Howard University, a BA degree in math physics from Talladega
College, with additional study at Berkeley and Columbia
University. Dr. Perry testified that he never received
anything in writing explaining why he was furloughed or any
notice of a furlough appeal. Dr. Perry testified that he
attempted to meet with the department chair in Baton Rouge
after he evacuated to Houston but the chairperson did not
show up and "avoided" him. He also testified that
he did not attend a furlough hearing scheduled for him at
Williams-Scott was a full-time professor at SUNO teaching
biology in the College of Science, which included
mathematics, physics, chemistry, and computer science. She
was the department chair from 1993-1998 and was also a full
professor with tenure. She has a Ph.D. in Physiology and
Biophysics from the University of Alabama, a master's
degree in Biology and Experimental Dermatology from Brown
University, and a BA degree from Miles College. Dr.
Williams-Scott described a belligerent environment at SUNO.
She testified that she was removed as the chairperson of the
biology department in 1998 because she refused to endorse Dr.
David Adegboye's application for promotion and tenure. In
November 2005, she received a letter that she was being
furloughed without pay, and appealed it. Although she
attended the furlough appeal hearing, she stated that she did
not receive documentation from the hearing, and the hearing
was not recorded. According to Dr. Williams-Scott, she was
furloughed even though the only biology program that was
eliminated was the biology program for teachers, and not the
general biology program that she taught.
McGee has a BS in secondary education, a master's of
science in reading, and 36 hours in Assertive Teaching. Ms.
McGee was the tenured reading/study skills teacher's
assistant professor in the Student Support Services Program
of the Junior Division at SUNO, which included developmental
reading, math, English, tutorial, and counseling. The program
is federally funded and the government allocates nearly half
a million dollars per year (between $470, 000 and $500, 000).
To her knowledge, their student support funding was not
terminated after Katrina, and SUNO still had a Junior
Division after the storm. She never received notice that her
furlough had ended or that she had been fired. She recalls
attending a campus hearing for three hours that was conducted
by Dr. Rose Duhon-Sells, Vice Chancellor of Academic Affairs.
She testified that there was no recording of the hearing or
written reports made.
of appeal may not set aside a trial court's finding of
fact in absence of "manifest error" or unless it is
"clearly wrong." Carter v. Cox Cable, New
Orleans, 00-1934, 00-1935, 00-1936, 00-1937, p. 2
(La.App. 4 Cir. 12/12/01), 806 So.2d 24, 27. The Supreme
Court has a two-part test for reversal of a factfinder's
determinations: (1) the appellate court must find from the
record that a reasonable factual basis does not exist for the
finding of the trial court; and (2) the appellate court must
further determine that the record establishes that the
finding is clearly wrong (manifest error). Id.
(citing Mart v. Hill, 505 So.2d 1120, 1127 (La.
Process in Extreme Disaster Situations
respect to Plaintiffs' due process claims, SUNO argues
that the Louisiana Supreme Court's decision in Oliver
v. Orleans Parish School Board, 14-0329, 15-0330 (La.
10/31/14), 156 So.3d 596, which addressed due process in an
extreme disaster situation caused by Katrina, applies to this
Oliver, approximately 7, 600 former teachers and
other permanent employees of the Orleans Parish School Board
("OPSB") who were laid off or terminated claimed a
"due process" violation by the OPSB. During its
first post-Katrina board meeting, the OPSB had approved a
resolution to place employees on disaster leave, "given
the emergency closure of all schools and the subsequent lack
of revenues." The "disaster leave" was without
pay, retroactive to August 29, 2005, and allowed the
employees to collect unemployment benefits while New Orleans
and the OPSB tried to recover from the hurricane. OPSB set up
a 24-hour employee hotline to communicate with displaced
employees and to begin to determine which employees could
return to work when the schools re-opened.
Oliver, effective November 30, 2005, the legislature
passed an act that resulted in the transfer of the vast
majority of Orleans Parish public schools to the State's
Recovery School District ("RSD"). The new provision
resulted in 102 of the 126 public schools in Orleans Parish
being taken over by the State after Hurricane Katrina. Of the
24 schools remaining, seven were closed as uninhabitable, 12
became charter schools, and five remained under the
jurisdiction of the OPSB. The legislature's act resulted
in a severe loss of funding to the OPSB, including $17
million per month in funds from the State. In addition,
because the OPSB only retained five schools, it had a
dramatically reduced need for employees. On February 26,
2006, the OPSB notified all OPSB employees in a letter that a
reduction in force was being instituted, and that they would
be terminated effective 30 days from the issuance of written
notice. The OPSB advised the employees that it did not
anticipate calling employees back to work and would not
prepare a recall list.
Oliver plaintiffs then filed a class action suit
alleging that the unpaid disaster leave violated their
statutory and procedural and substantive due process rights
as guaranteed by the U.S. and Louisiana Constitutions. The
trial court found that OPSB violated the plaintiffs' due
process rights because the OPSB failed to create a recall
list, so that the class members lost the opportunity for
employment for two years.
appeal, the Supreme Court reversed the trial court's
finding that OPSB violated the plaintiffs' due process
rights. The Supreme Court found that the 24hour call center,
which created a list of employees who intended to return to
work "was not perfect and did not technically amount to
a recall list." The Court concluded however, that
"the 'process' afforded by the City to civil
servants in the wake of Hurricane Katrina, while imperfect,
was not constitutionally deficient in light of the
extraordinary challenges the City of New Orleans faced."
Oliver, 14-0329, p. 37, 156 So.3d at 621.
Oliver Court held:
[W]e find that neither the OPSB nor the State defendant's
[sic] violated the class members' due process rights.
Lack of a recall list does not constitute a due process
violation, the procedures used by the OPSB to locate their
employees after Katrina was [sic] sufficient to meet due
process standards, and the vast majority of those rehired by
the OPSB were former OPSB employees. Finally, there is no
constitutionally protected interest in the right to
"priority consideration' ...