Daryl E. Murray VS City of Baton Rouge, Parish of East Baton Rouge Through the Office of Planning Commission and Troy L. Bunch
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2031 DARYL E MURRAY VERSUS CITY OF BATON ROUGE PARISH OF EAST BATON ROUGE THROUGH THE OFFICE OF PLANNING COMMISSION AND TROY L BUNCH On Appeal from the 19th Judicial District Court Parish of East Baton Rouge Louisiana Docket No 433 620 Division Honorable William A Morvant Kathryn Landry Ieyoub Landry E Judge Presiding Attorney LLC Plaintiff for Appellant Murray Baton Rouge LA Daryl E Wade Shows Attorneys Dawn N Defendants Guillot Gwendolyn K Brown Office of Parish Attorney Baton Rouge LA E for Appellees Rouge Parish of East Baton Rouge Through the Office of Planning Commission and Troy L Bunch City of Baton CHIEF JUDGE JOAN BERNARD ARMSTRONG AD HOC BEFORE ARMSTRONG KIRBY AND BELSOME JJ 1 AUG 2 2 Z007 Judgment rendered AFFIRMED BELSOME J 1 Armstrong Chief Judge the Honorable Michael E Kirby Judge and the Judge all members of the Fourth Circuit Court of Appeal are serving ad hoc by special appointment of the Louisiana Supreme Court judges The Honorable Joan Bernard Honorable Roland l Belsome Jr as DISSENTS WITH REASONS of Baton Murray filed suit against her former employer the City Parish E Daryl Ms Rouge the City based ciscrimination employment and her on race The status supervisor Troy that led Bunch filed Judgment seeking dismissal of Ms Murray court granted by judgment dated reasons for judgment Trial which the trial This of the trial on court denied appeal followed to that there is accomplish no as a matter s Murray filed that follow reasons procedure is designed to these ends The La a which the trial had issued oral Motion for New we affirm the judgment genuine issue matter of law on as the just speedy and art 966 A pleadings 2 A summary deposition material fact and that the art 966 B mover The burden of to answers together with the affidavits if file La C C P any show is entitled to proof remains However if the movant will not bear the burden of proof at trial that is before the burden to secure procedure is favored and shall be C C P be rendered forthwith if the with the movant movant Ms court tor Summary June 21 2006 For the interrogatories and admissions the prejudice The trial 2006 determination of civil actions judgment shall on on suit with Motion a court inexpensive judgment s December 5 2005 The summary judgment construed June 12 alleging employment the constructive termination of her to Mr City and Bunch on court on the motion does the motion for summary not 2 require him to judgment the negate all essential elements of the adverse party s claim action the court essential that there is produce to ali An adverse on the mere as otherwise genuine are party to a Specialist in her 31 1995 January 9 terminated Bunch denied her the She building in the following l Mr Bunch 2 Mr Bunch response by affidavits or specific facts showing that there is 967 art a Summary judgments 1994 her Planner III as a position changed restricted appointment Economic Development on a to Murray alleged on information and belief that on in such November 13 equal opportunity employment because unlike to issue of material summary judgment may not rest La C C P because of the way Mr Bunch treated her Mr to original petition filed in 1996 that the defendants only African American employed constructively elements novo Murray alleged Ms genuine no pleading but his law must set fOlih employed her from October the supported motion for denials of his or provided by about more out to establish that he will be able to trial there is at or point 966 C 2 allegations reviewed de or of proof one to Thereafter if the adverse defense or factual support sufficient issue of material fact for trial Ms On claim action s satisfy his evidentiary burden fact La C C P defense but rather absence of factual support for the adverse party to party fails an or non other exclusive was She position 1995 Ms her last was alleged that she was day of Murray alleged that in the terms employees alleged that she a that time she at in her subjected a the City and conditions position to employment she was and of her denied a key hostile work environment particulars constantly yelled at her in demeaning tones frightened her in meetings by pointing his finger in her face with others present 3 3 Mr Bunch 4 Because of Mr Bunch same 5 frightened her by throwing level and subjected Mr Bunch to s request she re paper at her was rated lowest of all employees at the evaluation and demeaned her in the presence of her regularly embarrassed subordinates and 6 She was Ms the Civil required to leave her job a day early without pay Murray sought damages under La Act of 1964 Rights salary past R S 51 2241 et and 42 U S C A and future lost benefits seq2 9 701 of et seq 92000e b for past and future lost and mental suffering embarrassment and anguish past present and future In 1997 Ms Murray amended her petition deleting In 2000 Ms cause Murray filed amending and supplemental petition adding a of action for intentional infliction of emotional distress Because the provide relief we statutory provision cited by Ms Murray in her petition does attempted to state provides in not have examined the record and from the arguments contained in the memoranda and briefs filed which an her federal claims a on behalf of Ms claim for relief pursuant Murray to the we provisions conclude that she of La R S 23 332 pertinent part A It shall be unlawful discrimination in to engage employment for an employer in any of the following practices Intentionally discharge any individual to intentionally otherwise discriminate against 1 or any individual with respect to his conditions or privileges of employment because of the individual s terms race Intentionally in employees 2 2 limit any way classify his which would deprive or tend segregate or provides Cooperation between state and local commissions cooperative working agreements with local commissions which have enforceable and professional staff under the provisions ofR S 51 2238 That section 4 The commission may enter into ordinances orders or resolutions any individual of to deprive or otherwise adversely because of the individual In order to prove constructive proving that the City and intolerable or a 1019 844 So 2d 1012 4 Cir 4 26 95 App employee reasonable person in Ms Cir 4 La Phelps Ms statute protected group 2 she was was involuntary resignation subjected by discriminatory animus condition or to her to 5 Marriott to recover proving extreme 3 that the that severe and outrageous City and 2 1 that 1 3 citing White v in her prevail she belongs the harassment employer knew or a to a was term should have King v Phelps that she suffered Mr Bunch desired to inflict King v Monsanto Co Phelps Dunbar severe severe or City and emotional distress and emotional distress at p 1991 La Ms Mr Bunch substantially certain LLP 585 So 2d 1205 1209 5 of emotional distress the conduct of the emotional distress would be certain from their conduct 94 2025 p 4 the harassment affected the App 4 based and thus violated the for intentional infliction Murray has the burden of proving that was La 18 844 So 2d at 1023 at p In order to difficult were so Corp known of the harassment and failed to take proper remedial action Dunbar L L P be satisfied shoes would have felt s harassment race employment and must Furthermore race created such 01 1735 p 10 v 849 the burden of motivated of Murray citing Plummer 654 So 2d 843 Murray has privilege deliberately subjected was Dunbar L L P claim that this constructive termination relevant and to has the burden of Murray forced into was to which the v 9 Ms discharge Bunch intended compelled to resign See King 03 2 employee an discharge has occurred the trier of fact working conditions unpleasant that status as s race conditions that she working To find that constructive that the Mr employment opportunities affect his 10 or to knew result 844 So 2d 1019 The element of requirement toward her In that Ms Murray who Jeffrey Edwards was Bunch is the motivated by animus sworn the Development Specialist because she did Ms Murray develop Economic not an s participated depositions City employed development experience who Ms in the hiring Mr Bunch William of Ms Murray and of Mr Jensen and Mr Dolese Murray under a rather than as a qualifications was Planner III which Planner III as a Later the development strategic plan and development was Economic was an open position tailored was Murray to set up the Mr Jensen was to hired Office of anticipated thrust of the office employed Rouge Planning Commission in 1993 and an as position Development community suppOli committee Mr Bunch testified that he hired Mr Jensen testified that Ms that she would direct the economic in October of grant because of her economic They both testified that she qualify economic depositions of Ms Murray supervised by Ms Murray when he worked for the City was to the According to prove that the harassment Mr support of their motion for summary judgment the City and Mr Bunch Jensen and Robert Dolese meet by the City and race provided excerpts from the 1994 issue at proof put was as Assistant Director of the Baton promoted Director when Mr to Dolese retired in January of 1995 Mr Jensen and Mr Edwards testified that Mr Bunch had provoked complaints from white employees including manner to many white employees and that he treated in a many similar Murray claims he treated her The defendants introduced a management style Mr Jensen and Mr Edwards themselves the way in which Ms which she recalled s portions of Ms Murray few instances in which she had 6 s deposition testimony not returned in timely from lunch including when she returned once leave slip for house she took a She admitted that leave time to tend work She also missed Ms a for eight a non to ten She also testified never pointed out so the one of her reports Ms looking taken having taking personal calls as at President a an Economic Development Mr Bunch commented that he errors embarrassed before and that error to was a days for surgery Murray also admitted that been recall not profit association of which she served Inventory and Analysis Report contained had hours late and put in period of a few weeks while she personal calls in her office and did her house search to occasionally during approximately two councilwoman had called him and Murray admitted that the document ultimately was her responsibility Attached to Ms Murray memorandum from Mr Jensen deposition s to Mr Bunch Dolese in which Mr Jensen noted that he had use was of office time and work related matters a copied met of copy to with Ms According Ms a to to of economic development Jensen talked about keeping memorandum Ms allowing for occasional pre development projects regulmized schedule a Mr discuss the Murray said she understood the commitment needed and would continue her work time 1995 Murray and Murray to the June 5 to devote She and Mr of breaks and lunch hours approved variations and appreciating the necessity to keep deadlines Also attached from Ms Murray to her to Mr memorandum dated June 12 1995 concerning lunch hour and break schedules Ms deposition Jensen Murray agreed in the document to a was a schedule of lunch hour and other breaks and that she and her section would observe the office conducting of personal business on company time 7 policies of no game playing or Mr Edwards testified deposition on that Ms deadlines affected the effectiveness of the not were occasion was not getting on the done that which Mr Bunch satisfactory pointed finger was He testified that the at Ms Murray was only when her work Murray was Commission recuperating from Edwards of Urban Restoration Enhancement in needed position with the Planning She testified that while she to meet Planning Commission because they were a failure s Mr Edwards testified that he did not think Ms in her to serve competent things Murray she told Ronnie surgery Corporation UREC that she was situation where I felt I needed to make a choice start looking I also told her that it was a grant was written and a chance that the grant would not be renewed a Ms Edwards offered Ms Murray Coordinator for UREC which Ms the time she went to she had been Ms of grant s fear control and was she received reduced and memorandum she to Mr asked to her final for the s treatment her fewer benefits and salary applied to of a hostile environment her deposition In that resign effective November to Mr Bunch for the out of the her time 14 office opportunity to have worked in his future endeavors City and wished him all the best to than remaining compensatory time and annual leave paycheck and thanked According anyone for any at However her memorandum of she decided to asked that her unused sick leave be Murray testified that were City because treatment 1995 compensated her Development Project higher monthly salary a Bunch is attached only that states so was she left the discriminatory resignation addressed on Ms Murray accepted work for UREC Murray testified that be Economic as receiving with the City however there UREC ultimately job a deposition testimony Ms Murray did of her except that of Mr Bunch 8 No one not complain told her that of they believed Mr Bunch mistreated her because of her Furthermore Mr Dolese race Mr Jensen and Mr Edwards testified that she did not indicate to them that her complaints concerning From the that Ms complaints Murray entered deposition not s and provided on a were s that he employed based that of her immediate a finding management style may have left much that there workplace were any or racially charged evidence Disputed Material Facts relying supervisor support any racial slurs no founded upon racial discrimination Statement of any evidence to Bunch were race testimony supplied by the defendants there is sworn Murray Ms Mr Bunch to addressed Ms comments Mr Jensen on her However she has of racial animus While Mr be desired there is no evidence Murray by any racial epithet activities While Mr Jensen testified that he felt Ms or policies Murray was or evident in the picked he on qualified that characterization by noting problems with her punctuality meeting deadlines and document Mr preparation Jensen criticized Mr management style but noted that Mr Bunch treated him Mr Jensen he treated any of the other member of Ms Murray Mr Edwards Bunch treated all employees including Ms Murray Bunch than worse Mr Jensen is not a s race deposition testimony further supports the conclusion that employees in confirmed Mr Jensen s s a similar manner regardless of their testimony concerning the deficiencies race in Ms Mr He also Murray s work performance The facts that Mr Bunch her performance and did not pointed his finger give her a outrageous behavior that would support emotional distress There is no passkey do a Murray when criticizing not rise and to extreme claim of intentional infliction evidence that any 9 at Ms employee of Ms Murray s of rank or below had such Ms Murray testified job at a to passkey There is access simply claim that she lived in fear in the s the fact that she left her the job with no objective factual basis for workplace Furthermore Planning Commission she for another higher salary Absent burden of some proof at La R S 23 332 is misconduct by and summary trial and summary Ms Mr Bunch Ms judgment dismissing cannot sustain Murray cannot Murray Absent any evidence of appropriate sustain her her claims under extreme and outrageous her burden of proof at trial judgment dismissing her claim of intentional infliction of emotional distress is likewise Ms evidence of racial animus Murray appropriate also contends that the trial New Trial The trial court noted on or the for the Dec 5th erred in denying her Motion for its denial of the motion Plaintiff s motion does grounds court show either peremptory of new evidence not available discovery 2005 hearing not the motion for summary judgment Nor does the court find that discretionary grounds other than plaintiff s dissatisfaction with the court The s on ruling have been alleged mandatory grant of a new trial is governed by La C Civ Pro which provides A new trial shall be motion of any party in the 1 contrary 2 following When the verdict to granted or upon contradictory cases judgment appears clearly the law and the evidence When the party has discovered since the trial evidence due important to the cause which he could not with diligence have obtained before or during the trial 3 When the improperly so jury was bribed or has behaved that impartial justice has not been done 10 art 1972 In ground light is of our affirmance of the summary inapplicable Ms Murray evidence nor with due diligence obtainable before does not the first peremptory judgment point to any newly discovered does she offer evidence that such evidence should it exist Summary Judgment Since there or was no during the hearing jury trial the third on was not the Motion for peremptory ground is inapplicable For the foregoing reasons the judgment affirmed AFFIRMED 11 of the trial court IS therefore STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2006 CA 2031 DARYL E MURRAY VERSUS CITY OF BATON ROUGE PARISH OF EAST BATON ROUGE THROUGH THE OFFICE OF PLANNING COMMISSION AND TROY L BUNCH On Appeal from 19th the Parish ofEast Baton Judicial District Court Louisiana Rouge Docket No 433 620 Division E BELSOME J DISSENTS WITH REASONS I respect respectfully to Ms Murray s during her Murray testimony Mr employees s There is at least one claim for constructive William Jensen with employment observations of the Murray dissent one the City of Ms testified and that she was Murray picked upon further testified that he observed Mr Bunch did not when speaking observe Mr Bunch although occasIOn resolved to Ms speaking Whether these through grant of Appellee a s working judgment Motion for by employed In addition to Ms MUlTay as Mr to s supervisors his personal Bunch and Ms not treated like other Mr Bunch using Mr Jensen strong emphasis and Mr Jensen stated that he Murray employee in this manner this tone with him conditions hostile work environment summary was to any other he did state that Mr Bunch discharge andor discharge working relationship between Jensen testified that Ms strong direction issue of material fact with are constituted not Accordingly Summary Judgment on one constluctive issues that should be I would reverse the
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