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Kaltenbaugh v. Board of Supervisors

Court of Appeals of Louisiana, Fourth Circuit

October 23, 2019


          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2006-04126, DIVISION "D" Honorable Nakisha Ervin-Knott, JUDGE



          Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins


         These 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 of Appeal.


         In 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.

         Under 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.[1] 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 part-time.

         On May 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 2, 2006.

         On July 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.

         On 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.

         In 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.[2] 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.

         On 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.

         The 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.


         Assignments of Error

         The 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 situation.
• 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 years.
• The trial court erred in not requiring Plaintiffs to mitigate their damages.

         The Plaintiffs

         Dr. Robert Perry

         Dr. 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 SUNO.

         Dr. Shirley Williams-Scott

         Dr. 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.

         Ms. Audrey McGee

         Ms. 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.

         Standard of Review

         A court 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. 1987)).

         DUE PROCESS

         Due Process in Extreme Disaster Situations

         With 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 case.[3]

         In 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.

         In 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.

         The 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.

         On 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.

         The 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' ...

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