Elaine G. Davis VS Cecil Picard and The Louisiana State Board of Elementary and Secondary Education
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2007 CA 2198 ELAINE DAVIS VERSUS CECIL PICARD AND LOUISIANA STATE BOARD OF ELEMENTARY AND SECONDARY EDUCATION Judgment rendered On Appeal from the JUN 6 2008 19th Judicial District Court Rouge State of Louisiana Docket Number 534 519 Department 27 The Honorable Donald R Johnson Judge Presiding Parish of East Baton Nancy Picard Counsel for PlaintiffAppellee Metairie LA Elaine Davis Angelique Duhon Freel Counsel for Defendants Appellants Karen L Godwin Rodney A Cecil Picard and Louisiana State Board Ramsey Assistant Attorneys General Baton Rouge LA BEFORE l Ix j of Elementary and Secondary Education PARRO KUHN AND DOWNING JJ DOWNING J Pastorek1 Paul and the Louisiana Board of Education collectively motion for partial summary cross court s judgment contributions be jurisdiction reverse the partial the issue of 2 granted Elaine Davis s and denied BESE s liability judgment recited the trial The revised Davis back s reflect her proper to adjusted determine the proper to that judgment Ms Davis had been demoted in contravention of the teacher ordered that Ms It laws tenure a on judgment motion for summary finding that appeal BESE Secondary and Elementary amounts summary judgment pay and The trial salary owing retirement For the system retained court following reasons we granted in favor of Ms Davis PERTINENT FACTS AND PROCEDURAL HISTORY Elaine Davis had been smce 1984 She was 1977 she had been The SSD s at pay scale grade to was also created In I tied a new August The to the East Baton There is Rouge Parish EBR school However the Belanger us reasons we case are in SSD do matched not closely as grade It is Superintendent was not placed being of Education having replaced trial court refusal to render in Step calculated Cecil Picard after his unchanged no appeal lies from a s a summary judgment 00 0747 p 5 La App 1 Cir 5 23 01 787 2d So 559 563 While to review the denial of their summary judgment motion no jurisdiction Gabriel Chemicals Inc v to exercise our for us supervisory to do so seem note that as a summary judgment positions Ms Davis received notice that she had been 2001 of La CC P art 968 tems compelling so step 13 year 5 M 2A pay range between M 2 and M 3 of the caption BESE asks Even 2 step 13 of the M 2 pay grade and that her salary By the plain See also step 13 year I At the time this litigation It raised the pay range for the M 2 pay Paul Pastorek is the current Louisiana State demisE In 1999 2000 school year the EBR school board revised its classifications and pay ranges not M 2 those in the EBR school system but During the possible 10 SSD Acting Assistant Director for SSD in 1997 management salary scale in 1992 s precisely correlate as placed to No 1 assistant director position in SSD one system promoted July 2005 she had reached grade M commenced in only employed by Special School District practical apparent Accordingly matter our we resolution here decline to exercise effectively disposes since both summary judgment motions addressed the 2 same issues our supervisory jurisdiction of SESE s cross motion for than anticipated previous position She Her supervisor her to according responsible for Ms Davis filed also denied lost 3 a was grievance which She filed for an therefore was receive Her appeal administrative review in the district Ms Davis then filed the current the motion for summary judgment at litigation issue here Nearly two asserting that consistently After Davis s with the teacher that Ms Davis tenure was not as described above BESE was which she years later she filed she was demoted in a cross motion demoted and that it acted laws hearing and post trial memoranda the trial a favor trial This asserting to court violation of the Teacher Tenure Act La R S 17 45A BESE filed for summary judgment smaller raise a this action denied was to The trial court court denied BESE s ruled in Ms motion for appeal followed BESE raises the following assignments of new error A The trial court erred in preparing and executing a judgment that does not meet the specificity requirements of the Louisiana Code of Civil Procedure B The trial court erred in granting plaintiffs motion for summary judgment and denying the cross motion for summary judgment filed by defendants when 1 Plaintiff failed to offer evidence in 2 an showing that Plaintiff who is employed Acting position is tenured Louisiana Teacher Tenure Laws do not guarantee any specific salary increase and Plaintiff had no property interest in the method used to calculate her salary specific method of computing salary does not constitute a status within the meaning of Teacher Tenure Laws and the EBR Management Scale itself allows the necessary discretion to make changes to the pay grades and 3 A 4 The jurisprudence shows that BESE s interpretation of the Manual and its policies is entitled to full force and effect C The trial erred in considering an early deposition testimony provided by In reasons lor its court explained court ruling denying that Ms Davis BESE was s not exception affidavit which is clearly contrary the affiant of res judicata in this case which was not allowed to raise her claims under the teacher administrative review and that she therefore had to bring them in 3 to a separate lawsuit appealed tenure laws the trial in the Assignment certified final as discussion of of Error A is subsequent to since the judgment has been revised and now moot a show order from this cause 4 We court pretermit Assignment of Error C due to the disposition within DISCUSSION A motion for summary no genuine Samaha trial issue of material fact for all Rau 07 1726 p v Appellate 966 art court s courts to 3 is a procedural 977 So 2d 880 882 La 2 26 08 review de judgment novo using the see matter of law a litigant La C C P criteria that govern the same judgment is appropriate issue of material fact and whether the genuine as a device used when there is part of the relief prayed for by or determination of whether summary whether there is any entitled judgment Samaha 07 1726 3 at p i e is movant 977 So 2d at 882 83 Tenure In which as claiming that she is tenured Ms Davis relies provides for permanent status after serving in on a new 17 45A 3 La R S a position for three years follows Whenever a acquired permanent status as set in a special school is promoted from a position of teacher who has forth in this Section special school to a position of higher status or salary such teacher shall serve a probationary period of three years in the higher position before acquiring permanent status therein lower salary or in such status but shall retain the permanent status status or salary from which he or she BESE admits position at as an acquired permanent Assignment of Error We are required to review the position of lower promoted grade status acting an propriety serving in her for four years at the time in in her position ofthe certification on 1915B is based belbre we address the merits ofthe which appeal our to points v Board 961 So 2d 418 420 prove that she is to jurisdiction to Baldwin and no provision or hear the appeal under La ofSup rs for University We agree that the certification is correct and that there is no just reason for because the detennination of liability or lack thereof is permitted unde La ce p art 966E and the determination of liability resolves major issues in the litigation of Louisiana System 06 0961 pp 3 4 La App delay I Cir 5 4 07 BESE question BESE argues in previous position however that Ms Davis has failed Bl tenured because she is in C C P art was in the uncontested fact that Ms Davis had been the M 2 level 13 pay that she had acquired 4 principle of law that capacity nor have precludes we from one found any La C cP art 966B here Ms Davis has the burden of BESE assertion that Ms Davis s affected her tenure rights Accordingly material fact evidence that BESE s does we judgment to service in s or she is in provides showing that there is material fact and that she is entitled more because he tenure as a conclude on our de that the acting movant genuine issue no of law matter to as Without acting position somehow an show the existence of not an novo genuine issue of a review of the supporting argument in this regard is without merit Demotion In its written change in Elaine Davis change in for reasons s rank demoting her in violation of provides court a definition of apparently reaching is In its revised pay RS La status the trial actual change in based its conclusions 17 45 court on had determine d status the to Ms Neither law et seq that the and will result in it found BESE liable demotion or court Davis grade pay status or rank pursuant to its and 2 for the present purposes for The trial totality ofthe evidence However in to answer at least M 2 level 10 from M 2 level 13 were BESE s a nor contract two implicit questions precludes entry of summary judgment in favor of Ms Davis offact which to an judgment these conclusions the reduction judgment subjectively I does lower her actions in connection with Ms Davis done generally applicable policies or was Ms Davis singled out for a reduction in level Ms pursuant 13 Davis to BESE step 5 on the section District July on affidavits s s 1 pertinent 2001 pay BESE policies s she automatically to show that achieved M 2 level personnel manual Bulletin 1864 provides special schools and special school districts that 1 Central Office East Baton depositions and other evidence tend professional staff salaries shall be Rouge Parish Public School Management Scale 5 in Special School computed using the The pertinent EBR Salary Procedures provide that July 1 as prescribed by s time in step that when she received notice in level 10 her status grade after the until after she was reduction in pay s grade contrary to the requirements of La to on the in this never not R S was the not s increased not only employee at rights would change not policies its singled her out for 17 45 the EBR pay using apply it directly the M 2 pay to Ms grade and affect the pay grade of other staff members salary reduced was not It shows that she had by no the change in change in pay her title job duties BESE argues that matter was the scale but did used the EBR scale did grade rather her salary or had tenure the contrary that it had discretion in BESE further shows that Ms Davis position supervisor She therefore concludes that BESE It shows that it to reduced by BESE but by her supervisor She shows that her It shows that Ms Davis changes was above payment schedule in 2000 She shows however that BESE did affected BESE argues scale set out acknowledges that BESE could have revised its salary policies have been affected that La R S 17 45A change would have affected her and that her before the Davis not at M 2 being placed alleged discretion in altering the salary policy Ms Davis grade was only employee of the SSD who the taken was supervisor used his context was to on Thus Ms Davis argues August 2001 that she EBR school system amended its She shows that this action direction of his the schedule on lowered in contravention was Her evidence shows that she in pay alary step advancement will be automatic of law a a change in the formula for calculating salary is demotion and that Ms Davis has of calculation particular means Davis for disparate treatment no employees as a property interest in any It further argues that it did not from other not single It asserts that out Ms changes were While the EBR management salary procedures aHows the EBR Sehool Board discretion 0 change pay grade it is unclear under the BESE personnel manual Bulletin 1864 who if anyone can exercise this assignments discretion 6 made not to the M 2 pay singling out Ms grade pursuant Davis to its policies and discretion and that it by its actions Louisiana Revised Statutes 17 45 and the other teacher teachers The provisions of the Teachers Tenure Law in favor of teachers since teachers Louisiana State Bd of 4 observed that our rank La App Construing the teacher have consistently held that cause Pardue salary or 1 Cir 971 so is entitled to matter Ms Davis was of fact that preclude entry is to a as a genuine issue or was Palmer 02 2043 laws a position p 8 La this court teacher not of lesser 2d So 251 v has only status 833 835 judgment is appropriate only where the summary no laws protect liberally construed they protect but also from transfer evidence shows that there is demoted tenure Livingston Parish School Bd v Even judgment be Elementary and Secondary Educ courts from dismissal without must tenure its intended beneficiaries are 369 842 So 2d 363 03 9 was of law reduced in as to material fact and that the mover La C C P art salary or rank 966B are Here whether subjective questions of summary judgment A motion for summary judgment rarely appropriate for a BRMAP 591 So 2d 1184 determination based 1189 La on subjective facts Carter v I Cir 1991 App DECREE For the summary foregoing reasons on our novo review we reverse the grant of judgment in favor of Ms Elaine Davis and against Paul Pastorek and the Louisiana Board of for further Elementary and Secondary Education and remand this proceedings Costs of this Davis and the Louisiana Board of amount de of appeal are to be matter split equally between Ms Elementary and Secondary Education in the I 321 50 each REVERSED AND REMANDED DECLINED 7 SUPERVISORY JURISDICTION
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