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11/28/01 "See News Release 93 for any concurrences and/or dissents."

SUPREME COURT OF LOUISIANA
No. 00-C-1394 c/w 00-C-1423

DONNA LABOVE, ET VIR. Versus ROY RAFTERY, JR., ET AL. ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, THIRD CIRCUIT, PARISH OF CAMERON
JOHNSON, JUSTICE* This action was brought by plaintiff to recover damages for age discrimination and intentional infliction of emotional distress against her employer, Cameron State Bank. We granted this writ of certiorari to determine whether the jury's determination that Cameron State Bank is liable to plaintiff for age discrimination and intentional infliction of emotional distress was manifestly erroneous. After reviewing all of the evidence and testimony in a light most favorable to plaintiff, we hold that the evidence was insufficient to support the jury's verdict in favor of plaintiff. Accordingly, we reverse the decisions of the lower courts and dismiss plaintiff's action. FACTS AND PROCEDURAL HISTORY In 1978, at the age of thirty-two, Donna LaBove ("plaintiff") began working for Cameron State Bank ("CSB") as a teller. She worked at the bank for approximately one month, then quit because she thought her supervisor was "abusive" and "belittled

Justice Harry T. Lemmon, retired, participated in the decision in this case which was argued prior to his retirement.

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employees." She returned to the bank three months later and went to work in the bookkeeping department. Over the years, she rose through the ranks to become head bookkeeper and assistant cashier, a position which required her to maintain all bank records, help customers open accounts, and supervise bank deposits, including the issuance of certificates of deposit. In the course of her employment, she received training in marketing and public relations, and in March of 1984, she became Assistant Vice-President for Public Relations and Marketing. As Assistant Vice-President, plaintiff was required to perform duties for CSB at its headquarters in the Town of Cameron, as well as at several branch facilities in rural Cameron Parish. She served in that position during the tenures of three bank Presidents. CSB began to experience financial hardships, primarily from its poor portfolio of farm loans and poor policies, procedures, and management. In 1991, the bank only made $14,000 in profits. In 1992, it suffered a 2.3 million dollar loss. On April 1, 1992, because of the bank's precarious financial position, the bank's board of directors hired Roy Raftery, a man with twenty-seven years of banking experience, as Executive Vice-President. Raftery's role was to give direction to the bank's President. When the bank continued to deteriorate, the president was asked to resign. On August 20, 1992. Raftery became CSB's new President. Immediately upon his installation, in an effort to save the bank, Raftery began to change policies, procedures, and personnel assignments. At the time Raftery assumed the presidency, plaintiff headed CSB's marketing and public relations in Cameron Parish. She also headed marketing and advertisement in Lake Charles and Sulphur. Her duties included opening the Cameron branch daily, testing job applicants, and training new employees, and making customer calls, during which she would visit customers and pass out trinkets from the bank. She also

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represented the bank at various community functions. In January, 1993, Raftery promoted plaintiff from Assistant Vice-President to Vice President. At that time, according to plaintiff's testimony, her duties included assisting lobby traffic, giving assistance and directions to customers, serving as backup person for new accounts, public relations (attending local functions, meetings, banquets, seminars), keeping track of all advertisements run by CSB's competitors, reviewing ads, planning and chairing monthly new account seminars, training employees, assisting the purchasing clerk, ordering supplies, assisting and compiling data for incentive programs, and planning new services programs for bank assistants. In February, 1993 bank regulators completed an audit of the bank. On March 15, 1993, the Federal Deposit Insurance Corporation (hereinafter "FDIC") placed CSB under a "cease and desist" order. To avert bank closure, CSB's management immediately changed bank operations. Raftery assumed responsibility for CSB's major marketing. Plaintiff continued to do minor marketing tasks, such as placing advertisements for the bank in school and church programs. In addition to her current duties, plaintiff assumed the role of supervising tellers at the Cameron, Creole, Grand Chenier, and Johnson Bayou branches of the bank. Supervising the janitors in Cameron also became part of her duties. Greg Wicke was hired as branch manager, and Evelyn Landry was hired as assistant branch manager. Another new policy altered the chain of command so that all CSB employees at the Cameron branch, including plaintiff, were required to report to Wicke and Landry. In May, 1994, the CSB employee who handled purchasing and ordering supplies resigned. Consequently, plaintiff assumed sole responsibility for those duties. On March 6, 1995, Raftery hired Leslie Harless as the director of marketing and public

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relations. He also relieved plaintiff of her new employee training responsibilities and reassigned that duty to Tonya Goss, the bank's new accounts clerk. In late 1995, plaintiff communicated to bank management that her job had become too stressful and was adversely affecting her health.1 In an attempt to accommodate her, Raftery offered plaintiff a less stressful position as branch coordinator/head teller at the CSB branch in Creole, Louisiana, which is located approximately 14 miles from Cameron, with no reduction in pay. Plaintiff declined that offer because she preferred to continue working at the main branch in Cameron. Thereafter, CSB created a new position for plaintiff at the Cameron branch, which significantly reduced her responsibilities. Her new responsibilities were opening new accounts and serving as a backup teller. The bank also removed her

responsibility for approval of checks and handling insufficient funds. Plaintiff was also informed that she would no longer represent the bank at community functions. Furthermore, because of her complaints that she had trouble lifting boxes, ordering supplies was removed from her job description. CSB also offered to provide a private counselor for six months to assist plaintiff with stress management. The bank expressed a willingness to provide the counseling at its expense and during bank hours if no after-hours appointments were available. Due to the significant decrease in her responsibilities, CSB reduced plaintiff's salary by approximately thirty percent. On January 5, 1996, plaintiff sent a memorandum to Mary Robbins, the Senior Vice President of Operations, in which she detailed all of the duties she had been required to perform since 1993. While she thanked management for relieving her of the stressful responsibilities, she closed by requesting that her salary "remain at the 1995 salary level."
The evidence reveals that plaintiff was hospitalized for high blood pressure while on vacation in October, 1995. 4
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In mid-January, 1996, members of the bank's management team had a meeting with plaintiff and explained to her the new management decisions affecting her. She was informed that her new position was a dual one (new accounts and backup teller) because the number of new accounts opened in Cameron was insufficient to justify a full-time position. On the average, only two accounts were opened per day at the Cameron branch. Plaintiff was also told that if she was unable to perform the duties of a backup teller, the bank would need to hire someone else, and her job and salary would be re-evaluated. Additionally, she was informed that the bank no longer needed a Public Relations person and that the duties she performed in the community on behalf of the bank would be executed by the branch manager and assistant branch manager. The branch manager and assistant branch manager were also assigned the duties of handling insufficient funds, approving service charges, and approving checks. Soon thereafter, plaintiff expressed an interest in the head teller position previously offered to her at the Creole branch, but stated that she would need to be re-trained as a teller.2 CSB informed plaintiff that no other options would be discussed with her until she provided a written response as to whether or not she was able to perform her current job as backup teller and if she would participate in the Stress Management Program offered to her. On April 29, 1996, plaintiff received an employee warning report for repeated errors in her new accounts duties. The complaint specifically stated that plaintiff placed the incorrect rates on certificates of deposit, one of which she never corrected. She was also cited for issuing a Trust certificate of deposit without obtaining management approval, entering incorrect maturity dates on certificates of deposit,
Plaintiff had worked as a backup teller the previous week and had to leave work early because she had difficulty using the teller machine and handling transactions. 5
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placing incorrect addresses on documents, failure to secure approval for ledger tickets, and signing her brother's name to a transfer authorization between his account and his wife's account. On June 28, 1996, plaintiff received the following employee warning report for poor performance concerning the following conduct: 1. Repeated certificate of deposit errors: a. Wrong maturity dates b. No social security numbers c. Names not matching the computer d. Incorrect phone numbers e. Incorrect interest paid on certificates of deposit f. Incorrect addresses g. Incorrect social security numbers 2. Leaving teller keys overnight in desk drawer 3. Paying bills and balancing the checkbook for the Chamber of Commerce on bank time 4. Calling in sick without talking to the branch manager or assistant branch manager despite repeated warnings 5. Discarding bank property in the trash can 6. Putting customer funds in jeopardy by discarding returned customer checks with incorrect addresses in the trash can without shredding 7. Purposefully causing conflict and disrespect among bank employees toward management Plaintiff was warned that she would be terminated if she continued to commit these violations. As of July 1, 1996, plaintiff stopped reporting to work. She filed suit against CSB, Raftery, Wicke, and Landry, alleging that she was constructively discharged on February 27, 1997. She sought damages for age discrimination and intentional infliction of emotional distress. Raftery, Wicke, and Landry were subsequently dismissed from the suit.

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The case was tried by jury on September 14-18, 1998. The jury found that CSB, through its agents, employees, or officers, unlawfully discriminated against plaintiff because of her age. The jury also found that the bank, through its agents, employees, or officers, intentionally inflicted mental distress on plaintiff. The jury awarded $100,000 in general damages, $79,406 in loss of past earnings, and $489,340 in loss of future earnings. On December 3, 1998, the trial court ratified the jury's verdict by signing the judgment. On that same date, the trial court denied plaintiff's motion to assess attorney fees against CSB. Additionally, on May 15, 1999, CSB's motion for judgment notwithstanding the verdict and/or new trial or remittitur of damages was denied. CSB appealed the trial court's judgment. Finding no manifest error, the court of appeal affirmed the jury's award. However, it denied plaintiff's cross-appeal for an increase in general damages and attorney's fees. LaBove v. Raftery, 99-1414 (La.App. 3 Cir. 4/19/00), 759 So.2d 240. Both plaintiff and CSB filed applications for certiorari with this court, and by orders dated September 15, 2000, we granted both applications. LaBove v. Raftery, 00-1394 (La. 9/15/00), 767 So.2d 698; 00-1423 (La. 9/15/00), 767 So.2d 699. DISCUSSION Standard of Review A trial court's findings of fact may not be reversed absent manifest error or unless they are clearly wrong. Stobart v. State of Louisiana, through Dep't of Transp. and Dev., 92-1328 (La. 4/12/93), 617 So.2d 880. This court has a constitutional duty to review facts. Ambrose v. New Orleans Police Dep't Ambulance Serv., 93-3099, 93-3110, 93-3112 (La. 7/5/94), 639 So.2d 216. Because we have this duty, we must determine whether the verdict was clearly wrong based on the evidence,

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or clearly without evidentiary support. Id. The reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's findings; it must instead review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous. Id. at 882. The issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the factfinder's conclusion was a reasonable one. Id. The reviewing court must always keep in mind that "if the trial court's or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently." Id. at 882-83 (citing Housley v. Cerise, 579 So.2d 973 (La. 1991)) (quoting Sistler v. Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La. 1990)). Age Discrimination CSB contends that there is no evidence to support plaintiff's age discrimination claim. Plaintiff's age discrimination allegation was based on the Louisiana

Commission on Human Rights Act ("LCHRA")3 and the Louisiana Age Discrimination

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LSA-R.S. 51:2231 provides: A. It is the purpose and intent of the legislature by this enactment to provide for execution within Louisiana of the policies embodied in the Federal Civil Rights Act of 1964, 1968, and 1972 and the Age Discrimination in Employment Act of 1967, as amended; and to assure that Louisiana has appropriate legislation prohibiting discrimination in public accommodations sufficient to justify the deferral of cases by the federal Equal Employment Opportunity Commission, the secretary of labor, and the Department of Justice under those statutes; to safeguard all individuals within the state from discrimination because of race, creed, color, religion, sex, age, disability, or national origin in connection with employment and in connection with public accommodations; to protect their interest in personal dignity and freedom from humiliation; to make available to the state their full productive capacities in employment; to secure the state against domestic strife and unrest which would menace its democratic institutions; to preserve the public safety, health, and general welfare; and to further the interest, rights, and privileges within the state. 8

in Employment Act ("LADEA") which prohibits employers from discriminating against individuals because of age.4 Because Louisiana's prohibition against age

discrimination is identical to the federal statute prohibiting age discrimination,5 Louisiana courts have traditionally looked to federal case law for guidance. See, e.g., King v. Phelps Dunbar, L.L.P., 98-1805 (La. 6/4/99), 743 So.2d 181, 187; see also Barbe v. A.A. Hamon & Co., 94-2423 (La. App. 4 Cir. 1/7/98), 705 So.2d 1210, writ denied, 98-0526 (La. 5/15/98), 719 So.2d 462. Disparate treatment cases are analyzed under the test developed for Title VII plaintiffs in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668, 678 (1973). A prima facie case

B. The prohibitions in this Chapter against discrimination because of age in connection with public accommodations shall be limited to individuals who are at least forty years of age. C. The Louisiana Commission on Human Rights shall have enforcement powers including adjudication of claims of discrimination prohibited by R.S. 23:312, 323, and 332, sickle cell trait discrimination prohibited by R.S. 23:352, and discrimination because of pregnancy prohibited by R.S. 23:341 et seq.
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LSA-R.S. 23:971-75 (repealed by Acts 1997, No. 1409

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