STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1326
ERYON LUKE
VERSUS
CPLACE FOREST PARK SNF, LLC
Judgment Rendered: MAY 1 12020
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court No. 621, 493
The Honorable William A. Morvant, Judge Presiding
Victor J. Woods, Jr. Attorneys for Plaintiff/Appellant, Elizabeth L. LeBlanc Eryon Luke Addis, Louisiana
Christine S. Keenan Attorney for Defendants/Appellees, Baton Rouge, Louisiana CPlace Forest Park SNF, LLC d/ b/ a Nottingham Rehabilitation Center and Traditions Senior Management, Inc.
BEFORE: HIGGINBOTHAM, PENZATO, AND LANIER, JJ. PENZATO, J.
Appellant, Eryon Luke, appeals a trial court judgment granting appellees,
CPlace Forest Park, SNF, LLC d/ b/ a Nottingham Rehabilitation Center
Nottingham) and Traditions Senior Management, Inc. ( Traditions), summary
judgment and dismissing Luke' s remaining claim against them. For the reasons
that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Luke originally filed a petition for damages against Nottingham under Title
VII of the Civil Rights Act of 1964 ( Title VII), as amended by the Pregnancy
Discrimination Act of 1978, 42 U.S. C. 2000e -(k) ( PDA); the Family Medical
Leave Act, 29 U.S. C. § 2601, et seq., 29 C. F. R. Part 825 ( FMLA); and the
Louisiana Employment Discrimination Law, La. R. S. 23: 301 et seq. ( LEDL).
Luke alleged that Nottingham discriminated against her by terminating her
employment because she was pregnant and had lifting restrictions imposed on her
by a doctor based on her pregnancy. Nottingham removed the matter to the United
States District Court for the Middle District of Louisiana ( Middle District). In the
Middle District, Nottingham filed a motion for summary judgment seeking to have
all of Luke' s claims dismissed in their entirety. The Middle District granted the
summary judgment in part and dismissed with prejudice all Luke' s claims under
Title VII, as amended by the PDA, the FMLA, and La. R.S. 23: 342( 2)( b) ( based on
denial of full leave under LEDL). Nottingham' s claims pursuant to La. R.S.
23: 303( B) to assess damages and fees against Luke were denied. The Middle
District denied the motion for summary judgment in part, dismissed Luke' s claim
under La. R.S. 23: 342( 4) ( based on denial of reasonable accommodation) without
prejudice, and remanded to the Nineteenth Judicial District Court for consideration
of this claim.
N Following the remand, Luke filed a supplemental and amended petition
adding Traditions' as a defendant. Luke asserted that Nottingham and Traditions
collectively " defendants") acted as a single integrated enterprise, alleging that
both defendants had violated La. R.S. 23: 342( 4) by refusing to accommodate her
by transferring her to a less strenuous or hazardous position for the duration of her
pregnancy.
Defendants filed a motion for summary judgment on January 17, 2019. 2 The
motion for summary judgment asserted that Luke failed to comply with the
mandatory pre -suit filing requirements in La. R.S. 23: 303( C) with respect to
Traditions and failed to establish that there were vacant light duty positions
available that could accommodate the lifting restrictions placed upon her during
pregnancy. The trial court held a hearing on July 1, 2019, and recognized that the
only claim remaining was pursuant to La. R.S. 23: 342( 4). The trial court orally
noted that Luke had failed to comply with the thirty -day notice requirement in La.
R.S. 23: 303( C) with respect to Traditions. However, the trial court deferred ruling
on that basis due to its granting summary judgment based on the merits of the
claim finding no violation of La. R.S. 23: 342( 4) by defendants. The trial court
noted that only one light duty position was available at the time, and it was held by
another employee. The trial court further indicated that the position for which
Luke was hired required lifting over thirty pounds. There were no positions
requiring lifting of less than thirty pounds. The trial court orally granted the
1 Traditions is the management company for Nottingham. 2 Traditions had previously filed an exception of prescription, which was granted by the trial court. During the pendency of the appeal of that exception, Nottingham filed a motion for summary judgment. This court reversed the trial court' s grant of the exception of prescription in Luke v. Mace Forest Park SNF, LLC, 2017- 0864 ( La. App. 1st Cir. 5/ 18/ 18), 250 So. 3d 995, 999, finding that Traditions and Nottingham were joint tortfeasors. Thereafter, both Nottingham and Traditions filed a motion for summary judgment, which is the subject of this appeal.
3 motion for summary judgment and signed a judgment in accordance with its oral
ruling on July 24, 2019, dismissing Luke' s remaining claim. It is from this
judgment that Luke appeals.
ASSIGNMENTS OF ERROR
Luke assigns as error that the trial court erred in finding no genuine issues of
material fact as to whether she was entitled to a reasonable accommodation
pursuant to La. R.S. 23: 342( 4), in making credibility determinations, and in
weighing summary judgment evidence.
SUMMARY JUDGMENT
Summary judgment procedure is favored and " is designed to secure the just,
speedy, and inexpensive determination of every action .... and shall be construed to
accomplish these ends." La. C. C. P. art. 966( A)(2). In reviewing the trial court' s
decision on a motion for summary judgment, this court applies a de novo standard
of review using the same criteria applied by the trial courts to determine whether
summary judgment is appropriate. Reynolds v. Bordelon, 2014- 2371 ( La. 6/ 30/ 15),
172 So. 3d 607, 610.
After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents
show that there is no genuine issue as to material fact and that the mover is entitled
to judgment as a matter of law. La. C. C. P. art. 966( A)(3). The only documents
that may be filed in support of or in opposition to the motion are pleadings,
memoranda, affidavits, depositions, answers to interrogatories, certified medical
records, written stipulations, and admissions. La. C. C. P. art. 966( A)(4).
The mover bears the burden of proving that he is entitled to summary
judgment. However, if the mover will not bear the burden of proof at trial on the
4 subject matter of the motion, he need only demonstrate the absence of factual
support for one or more essential elements of his opponent' s claim, action, or
defense. La. C. C. P. art. 966( D)( 1). If the moving party points out that there is an
absence of factual support for one or more elements essential to the adverse party' s
claim, action, or defense, then the nonmoving party must produce factual support
sufficient to establish the existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law. La. C. C. P. art. 966( D)( 1);
Holmes v. Lea, 2017- 1268 ( La. App. 1st Cir. 5/ 18/ 18), 250 So. 3d 1004, 1009.
In ruling on a motion for summary judgment, the trial court' s role is not to
evaluate the weight of the evidence or to determine the truth of the matter, but
instead to determine whether there is a genuine issue of triable fact. Janney v.
Pearce, 2009- 2103 ( La. App. 1st Cir. 5/ 7/ 10), 40 So. 3d 285, 289, writ denied,
2010- 1356 ( La. 9/ 24/ 10), 45 So. 3d 1078. A " genuine" issue is a triable issue,
which means that an issue is genuine if reasonable persons could disagree; if on the
state of the evidence, reasonable persons could reach only one conclusion, there is
no need for a trial on that issue. A fact is " material" when its existence or
nonexistence may be essential to plaintiff' s cause of action under the applicable
theory of recovery. Kasem v. State Farm Fire & Cas. Co., 2016- 0217 ( La. App.
1st Cir. 2/ 10/ 17), 212 So. 3d 6, 13.
LAW AND DISCUSSION
Luke was employed as a certified nursing assistant ( CNA) with Nottingham,
a skilled nursing facility, beginning October 11, 2011. 3 On December 2, 2011,
Luke learned that she was six weeks pregnant with twins, and her treating
physician directed her not to perform any heavy lifting for two weeks. Luke
worked on Saturday and Sunday, December 3 and 4, 2011, with the weekend
3 The record also contains a hire date of October 10, 2011.
5 supervisor permitting her to work without doing any heavy lifting on those days.
On Monday, December 5, 2011, Luke was informed that she would be unable to
work until the lifting restriction was lifted, since the CNA position required heavy
lifting. On December 12, 2011, her treating physician permitted Luke to return to
work with no restrictions. Between December 12, 2011, and January 21, 2012,
Luke worked numerous shifts, but left early on several occasions or " called in"
sick. The last full shift she worked was on January 19, 2012. On January 20,
2012, Luke worked " a few minutes," and on January 21, 2012, she worked for four
hours.
On January 22, 2012, Luke brought a note to Nottingham from her treating
physician which stated, " No heavy lifting throughout pregnancy[.]" However,
Rachael Carcamo, the Human Resources Payroll Manager of Nottingham,
informed her that she could not work with those restrictions. On the next day,
January 23, 2012, she was placed on FMLA leave.4 At that time, Luke requested
to work as a " nurse dispatch," which she claimed required no heavy lifting. She
alleged that there was an opening for that position, but that Nottingham denied her
request. On January 26, 2012, Luke brought another note to Nottingham from her
treating physician indicating that she could not lift over thirty pounds during her
pregnancy. Thereafter, the treating physician, at Nottingham' s request, filled out
paperwork dated February 8, 2012, stating that Luke was capable of working with
her only restriction being lifting anything over thirty pounds. Luke wrote a letter
to Nottingham dated February 16, 2012, requesting to be accommodated, noting
4 It is unclear from the record as to the type of leave used by Luke. An employee of Nottingham testified by affidavit that because Luke had not been employed for at least twelve months or worked 1250 hours she was ineligible for FMLA, and was thereby allowed to take four months leave pursuant to Louisiana law from January 23, 2012, to May 23, 2012. However, a document evidencing Luke' s termination attached to that affidavit refers to Luke' s FMLA leave expiring, as does the deposition testimony of the affiant.
11 that she could perform all aspects of a CNA job other than lifting patients. The
treating physician also submitted an undated letter to Nottingham noting that Luke
could work throughout her pregnancy as long as she did not lift over thirty pounds.
Luke claims that she was not allowed to return to work, was forced to use FMLA
leave, and was terminated effective May 25, 2012. She sought damages from
defendants due to the alleged unlawful employment practices.
Defendants submitted numerous documents in connection with the motion
for summary judgment evidencing the facts of the case. Luke worked the 2: 00
p.m. to 10: 00 p.m. shift. Her duties as a CNA included making sure the patients
had dinner and assisting them with eating; ensuring the cleanliness of the patients
and the bed linens; changing the patients and the bed linens; pushing patients in a
wheelchair; making sure patients using a walker did not fall; turning patients in the
bed and physically lifting them; lifting a patient from the bed into the wheelchair;
responding to " call lights" of the patients; and the general grooming and personal
care of the patients. Defendants also produced the deposition of Luke in which she
admitted that she was unable to perform her job as a CNA with the lifting
restriction placed upon her during pregnancy.
Louisiana Revised Statute 23: 342 provides:
It shall be an unlawful employment practice unless based upon a bona fide occupational qualification:
4) For any employer to refuse to temporarily transfer a pregnant female employee to a less strenuous or hazardous position for the duration of her pregnancy if she so requests, with the advice of her physician, where such transfer can be reasonably accommodated, provided, however, that no employer shall be required by this Part to create additional employment which the employer would not
otherwise have created, nor shall such employer be required to discharge any employee, transfer any employee with more seniority, or promote any employee who is not qualified to perform the job.
VA We agree with defendants that the plain language of Louisiana Revised
Statute 23: 342( 4) requires only that an employer transfer a pregnant employee to a
less strenuous or hazardous position where the transfer can be reasonably
accommodated. However, the employer is not required to create additional
positions, discharge any employee, transfer an employee with more seniority, or
promote an employee who is not qualified to perform a job. La. R.S. 23: 342( 4).
Defendants contend that the record establishes there were no light duty
positions available at the time of Luke' s employment. Carcamo testified by
affidavit that the majority of Luke' s job duties required lifting and moving patients.
She also stated that defendants " did not offer light duty positions to any employees
under any circumstances." Furthermore, " there were no available light duty
positions vacant at that time." This was confirmed by Donna Duplantis, the
Regional Director of Human Resources for Nottingham, who also testified by
deposition that defendants attempted to find a position Luke could perform with
her restrictions, including looking at other facilities. Carcamo recognized that
Luke contended she should have been allowed to answer phones at the nurses'
station and call " out call lights." However, Carcamo testified that the only similar
position is that of a " ward clerk," which entailed duties of answering phones,
preparing and maintaining resident files, completing admission paperwork, and
assisting CNAs, on occasion, in the performance of their duties. Carcamo
maintained that the " ward clerk" position from 2: 00 p.m. to 10: 00 p.m. was held by
another employee since July 23, 2009. Carcamo also testified that she contacted
Duplantis regarding Luke' s physical restrictions that prevented her from
performing the duties of a CNA. Duplantis testified that she consulted with
Carcamo and the Director of Nursing in determining that there was no light duty work available for Luke. They also reviewed possible positions at other facilities
owned by Nottingham, but found no positions available.
Despite the arguments of Luke, La. R.S. 23: 342( 4) did not require the
defendants to temporarily transfer her " to a less strenuous or hazardous position for
the duration of her pregnancy and/or modify her job assignments and duties as was
done by her immediate supervisor initially." Luke' s immediate supervisor,
Michael Boligny, testified by deposition that Luke was permitted to work light
duty a " couple of times" when she first discovered she was pregnant. Carcamo
specifically testified that the light duty was for December 3 and 4, 2011. Carcamo
told Luke on December 5, 2011, that she could not work until the lifting
restrictions were removed. Defendants assert that the fact that Luke' s shift
supervisor allowed her to work light duty prior to Human Resources evaluating
Luke' s restrictions did not amount to a light duty position being available for the
duration of her pregnancy. We agree with defendants that the decision to allow
Luke to work a light duty schedule when she was initially given the lifting
restrictions does not establish there were light duty positions available during her
entire pregnancy. See Minnihan v. Mediacom Commc' ns Corp., 779 F. 3d 803, 812
8th Cir. 2015) ( finding that an employer' s voluntary temporary accommodation
does not concede a job function is non- essential).
Luke further maintains that even if no light duty position was available,
Nottingham was required by La. R.S. 23: 342( 4) to modify her job duties to
accommodate her lifting restrictions. Defendants argue that La. R.S. 23: 342( 4)
does not require them to reasonably accommodate Luke, but only to transfer a
pregnant employee to a less strenuous position if one is available. Luke' s
contention that defendants could have easily accommodated her by providing
another employee to help with lifting or providing a mechanical lift is inapposite.
E The evidence is that Nottingham did not possess a mechanical lift at the time Luke
was employed. As to having another employee help with lifting, La. R.S.
23: 342( 4) does not require an employer to " create additional employment which
the employer would not have otherwise created."
Furthermore, the evidence reflected that Luke could not perform an essential
function of her job, i.e., lifting. The LEDL, designed to embody the protections of
federal anti -discrimination laws, specifically prohibits discriminatory conduct in
the workplace. Because of the substantial similarities between state and federal
anti -discrimination laws, courts may appropriately consider interpretations of
federal statutes when construing Louisiana law. Hicks v. Central Louisiana Elec.
Co., Inc., 1997- 1232 ( La. App. 1st Cir. 5/ 15/ 98), 712 So. 2d 656, 658. In
discussing the American with Disabilities Act ( ADA), 42 U.S. C. § 12101, courts
have held that excusing an employee from an essential job function is not a
required accommodation. See Robertson v. Neuromedical Or., 161 F. 3d 292, 295
5th Cir. 1998), cert. denied, 526 U.S. 1098, 119 S. Ct. 1575 ( 1999) ( ADA does not
require an employer to relieve the employee of any essential functions of the job,
modify the actual duties, or reassign existing employees or hire new employees to
perform those duties); Lang v. Wal-Mart Stores E., L.P., 813 F. 3d 447, 455- 56 ( 1st
Cir. 2016) ( employer does not have to discharge essential job function of lifting up
to 60 pounds to accommodate employee); Mulloy v. Acushnet Co., 460 F. 3d 141,
153 ( 1st Cir. 2006) ( employer does not have to redefine an employee' s job
description with a proposed accommodation); Minnihan, 779 F. 3d at 813 ( ADA
did not apply to an employee who could not perform the essential job function of
driving). "[ T] he law does not require an employer to transfer from the disabled
employee any of the essential functions of his job." Barber v. Nabors Drilling
U.S.A., Inc., 130 F. 3d 702, 709 ( 5th Cir. 1997). If the plaintiff cannot perform the
10 essential functions of a job absent assigning those duties to someone else, then the
plaintiff cannot be reasonably accommodated as a matter of law. See Robertson,
161 F. 3d at 295; see also Reigel v. Kaiser Foundation Health, 859 F. Supp. 963,
973 ( E. D.N.C. 1994) ( holding that physician' s request for re -assignment to part-
time position, position with no call duty or position of supervision, all of which
would have depleted the group' s physicians by one and increased the
administrative staff by one, was not a reasonable accommodation).
We do not find that La. R.S. 23: 342( 4) required defendants to make the
accommodations that Luke seeks, as defendants were under no obligation to create
a position for Luke or to discharge another employee. We find that Luke failed to
produce factual support sufficient to establish that she would be able to satisfy her
evidentiary burden of proof at trial, as the evidence did not establish that
defendants had a light duty position to which Luke could be transferred for the
entirety of her pregnancy. We therefore agree with the trial court' s granting of
summary judgment dismissing the claim.
CONCLUSION
For the above and foregoing reasons, we affirm the trial court' s July 24,
2019 judgment granting summary judgment in favor of CPlace Forest Park, SNF,
LLC d/ b/ a Nottingham Rehabilitation Center and Traditions Senior Management,
Inc., and dismissing all claims of Eryon Luke against them. All costs of this
appeal are assessed to Eryon Luke.
AFFIRMED.