Dolores Dyess VS Kenneth Damann, and Louisiana State University

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NOT DESIGNATED FOR PUBLICATION STATE OF LOl1ISIANA T COUR QF AFPEAL FTRST CiRCUIT N0 2012 C 1799 A DOLORES DYESS VERSUS KENNETH DAMANN AND LOUISIANA STATE UNIVERSITY I 1 Judgment rendered April 26 2013 V Appealed from the 4 19 Judicia District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 605 754 Honorable Timothy Kelley Judge r TIFFANY MYLES CROSBY ATTORNEY FOR BATON ROUGE LA APPELLANT PLAIN7IFF DOLORES DYESS J ARTHUR SM1TH III ATfORNEYS FOR AND APPELLEE DEFENDANT AMY L MQNNIS KENNEfFi DAMANN E WADE SHOWS BATON ROUGE LA THOMAS R PEAK AlTORNEY FOR BATON ROUGE LA APPELLEE DEFENDANT BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AGRICULTURAL COLLEGE BEFORE KUHN PETTIGREW AND McDONALD JJ MECHANICAL PETTIGREW J In this case plaintiff seeks review of the trial court judgment sustaining s s defendant exception raising the objection of prematurity and dismissing without prejudice plaintiff suit against defendant For the easons that follow we affirm in part s reverse in part and remand FACTS AND PROCEDIIRAL HISTORY At all times pertinent hereto plaintifF Doiores Dyess was working as an administrative assistant under the employ of defendant The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College LSU Defendant Kenneth Damann was a tenured professor employed by LSU at the time According to the record on January 25 2011 Ms Dyess was delivering paperwork to another s employee office when Mr Damann called her into his office Ms Dyess alleged that upon entering his office Mr Damann slapped her with his open hand on the left side of her buttocks On October 5 201 Ms Dyess filed a petition for damages against Mr Damann and LSU alleging an unwanted touching by Mr Damann sexual harassment and intimidation Ms Dyess sought damages including pain and suffering mental anguish and loss of enjoyment of life In response to said petition Mr Damann filed an exception raising the objection of prematurity Mr Damann alleged that Ms Dyess c9aim was premature because she did not provide him with pre written notice at least thirty days before filing suit as suit required by La R 23 The matter proceeded to hearing on March 26 2012 at S 303 C 1 Louisiana State University was originally named in error as a defendant in this matter However in an amended petition Ms Dyess correctly added The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College as the proper party defendant Z LSU flled an answer generally denying the allegations of Ms Dyess petition Ms Dyess suit against LSU is still pending The notice provision of La R 23 provides as follows S 303 C A plaintiff who believes he or she has been discriminated against and who intends to pursue court action shall give the person who has allegedly discriminated written notice of this fact at least thirty days befo initiating court action shall detail the e alleged discrimination and both parties shall make a good faith effort to resolve the dispute prior to initiating court action 2 which time the trial court heard kesLimony from Mc Qamann After considering the record and the applicable law the tria4 c made he f ruling from the bench urt wing fl The statute is very clear Louisiana evised Statutes 23 says a 303iC plaintiff who believes he or she has t discrirninated agains or intends to een t pursue court action shall give the ae wh4 iaas allegedly discriminated son written notice of this fact aE lea thirky da before initiating court action t s and shall detail the alleged dfscrimiriatiori nd both parties shall make a od g faith effort to resolve the dispeite prio to initiating court action The letter that purports to be that notice does not comply with the statute The failure to comply with the statute is fatai It is and I going to grant m the exception of prematurity and dismiss the matter without prejudice In a judgment signed May 15 2012 the trial court dismissed Ms Dyess suit against Mr Damann without prejudice It is from this judgment that Ms Dyess has appealed arguing the trial court erred in ruling that her suit was a discrimination suit under the Louisiana Employment Discrimination Law LEDL La R 23 et seq S 301 thereby invoking the notice requirements under La R 23 and dismissing Mr S 303 C Damann from the suit DISCUS5ION Louisiana Code of Civii Procedure article 925 provides for the dilatory 1 A exception raising the objection of prematurity 7h objection is designed to retard the progress of the action rather than to deTeat it La Code Civ P art 923 A suit is premature if it is brought before the right to enforce the claim sued on has accrued La Code Civ P art 423 The objection of prematurity raises the issue of whether the judicial cause of action has yet come into existence because some prerequisite condition has not been fulfifled The viability of the exception is determined by the facts existing at the time the lawsuit is filed Mathies v Blanchard 2006 p 3 0559 4 Following judgment on the prematurity eMs Dyess filed a second amendedi petition for damages cception alleging that Mr Damann had perpetrated a condnuing tort against her through mntinuing acts of intimidation Mr Damann again responded to the petition with an exception raising the objection of prematurity Neither Ms Dyess seeond amended petition for damages nor this second prematurity exception is at issue in the instant appeal as they are both still pending in the trial court below 5 According to the record plaintiff originally sought supervesory writs with this court from the May 15 2012 judgment of the trial court In an order dated August 2 2G12 thfs court granted the writ for the limited purpose of remanding the case to the trial murt with instructions that the tHal court grant plaintiff an appeal See Dyess v Kenneth Damann and Louisiana State University 2012 La App 1 Cir 8 0680 12 2 unpublished writ adion 3 La App 1 Cir 2 959 So 986 988 07 21 2a The standard of review of a judgment sustaining a dilatory exception raising the objection of prematurity is that of manifest error Pinegar v Harris 2008 p 10 La App 1 Cir 6 20 So 1081 1112 09 12 3d 1088 On appeal Ms Dyess argues fhat the nQ requirernents of La R 23 ice S 303 C are inapplicable to her suit because the provisions of the LEDL only apply to complaints between employees and employers and Mr Damann does not qualify as an employer Ms Dyess further points out that in order to form the basis of a discrimination suit under LEDL an employee must allege some tangible employment action that forms the basis of the suit See La R 23 Ms DyQSS asserts that because she and Mr S 332 Damann were co the notice provisions of La R 23 cannot be workers S 303 C applicable to her suit against Mr Damann Moreover Ms Dyess asserts that she has not alleged any acts of sexual discrimination against Mr Damann in her petition for damages Rather Ms Dyess maintains that the only allegations made against Mr Damann were for unwanted touching and intimidation Based on our review of the record before us and the applicable law and jurisprudence we find no error in the trial court dismissal of that portion of Ms Dyess s suit against Mr Damann for sexual discrimination manifestly erroneous in dismissing Ms Dyess However the trial court was intentional tort claims against 6 Louisiana Revised Statutes 23332 provides as follows with respect to in discrimination in A entional employment A It shall be unlawful discrimination in empfoyment for an employer to engage in any of the following practices 1 Intentionally fail or refuse to hire or ko discharge any individual or othenvise to intentionally discriminate against any individual with respect to his compensation or his terms conditions or privileges of employment because of the individual race color s religion sex or national origin 2 Intentionally limit segregate or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee because of the individual srace color religion sex or national origin At oral argument counsei for Ms Dyess advised this court that although she had used the phrase sexual harassmenY in her petition there was in fact no claim for sexuai harassment against Mr Damann and that the only claims against Mr Damann that were before the court were the intentional touching and intimidation 4 Mr Damann Thus we reverse the tria caurt ju fnsofar as it dismisses Ms s gment Dyess claims against Mr Damann f anwan 1tc and intimidation and remand r ed s ching the matter for further Groceedings cons ith this apinion stent YON Ll1 CON For the above and foregoirag easor rve affir the May 15 2012 judgment s insofar as it dismissed Ms Dyess claim for sexual discrimination against Mr Damann We reverse the May 15 2012 judgment of the triaf court insofar as it dismissed Ms Dyess intentional tort claims against Mr Damann and remand the matter for further proceedings consistent with this opinion Alf costs associated with this appeal are assessed equally between plaintiff Dolores Dyess and defendant Kenneth Damann AFFIRMED IN PART REVERSED IN PART REMANDED 5

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