Lege v. NF McCall Crews, Inc.

625 So. 2d 185, 4 Am. Disabilities Cas. (BNA) 848, 1993 La. App. LEXIS 2048, 1993 WL 188925
CourtLouisiana Court of Appeal
DecidedJune 2, 1993
Docket92-1106
StatusPublished
Cited by9 cases

This text of 625 So. 2d 185 (Lege v. NF McCall Crews, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lege v. NF McCall Crews, Inc., 625 So. 2d 185, 4 Am. Disabilities Cas. (BNA) 848, 1993 La. App. LEXIS 2048, 1993 WL 188925 (La. Ct. App. 1993).

Opinion

625 So.2d 185 (1993)

Joseph Irvin LEGE, Plaintiff-Appellant,
v.
N.F. McCALL CREWS, INC., Defendant-Appellee.

No. 92-1106.

Court of Appeal of Louisiana, Third Circuit.

June 2, 1993.
Writ Denied October 15, 1993.

*186 Christopher Leonard Zaunbrecher, Lafayette, for Joseph Irvin Lege.

John Stanton Bradford, Lake Charles, for N.F. McCall Crews, Inc.

Before LABORDE, THIBODEAUX and DECUIR, JJ.

LABORDE, Judge.

In this age and handicap discrimination case, plaintiff-appellant, Joseph Irvin Lege, appeals a jury verdict in favor of defendant-appellee, N.F. McCall, Inc. Finding no error on the part of the trial court, we affirm.

FACTS

Prior to August 1988, Plaintiff-Appellant, Joseph Irvin Lege ("Lege") was employed as a boat captain by defendant-appellee, N.F. McCall Crews, Inc. ("McCall"). Lege was sixty-four years old when McCall hired him as a boat captain. He performed his duties as a boat captain until October 7, 1989 when he was removed from duty and taken to Abbeville General Hospital because of severe abdominal and back pain. Lege was diagnosed as having enterocolitis (infection of the small intestine and colon caused by a virus) and a hiatal hernia. Dr. Howard Alleman treated Lege until he recovered and then released him to return to work with no restrictions.

After being released from the hospital, Lege contacted McCall and informed Billy Johnston, McCall's personnel manager, that he was able to return to work. According to Johnston, Lege informed him that he would have to stop and catch his breath after moving up and down stairs and in general take it easy at times. However, Lege maintains that he did not indicate this to Johnston. When Johnston informed the owner and operator of McCall about Lege's limitations, he was instructed to contact the two other captains Lege worked with to determine if they thought Lege could still perform his job. Johnston indicated the other two captains believed Lege was a safety risk, and as a result, Lege was terminated. Johnston informed Lege that he was terminated because *187 McCall had concerns about his health and his physical ability to perform his job.

Lege subsequently filed suit alleging age discrimination and handicap discrimination based on his employer's perception that he was physically disabled. A jury trial resulted in a verdict for the defendant. Lege then instituted this appeal.

ASSIGNMENT OF ERROR NUMBER ONE

In his first assignment of error, Lege alleges the jury's verdict is manifestly erroneous because it is clearly contrary to the law and the evidence.

This case was brought pursuant to the Louisiana Age Discrimination in Employment Act (the Act) which is found at La.R.S. 23:971 et seq. Specifically, La.R.S. 23:972(A)(1) provides the following:

A. It is unlawful for an employer to:
(1) Fail or refuse to hire, or to discharge, any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's age.

There is little case law offering interpretive guidance to the substantive provisions of this Act, however, the prohibition against age discrimination is identical under the Federal and Louisiana Acts. Therefore, this Court will turn to the case law interpreting the Federal Act for guidance.

Federal jurisprudence interpreting this Act indicates the plaintiff must first prove a prima facie case in an age discrimination suit. Specifically, the plaintiff must prove:

(1) he was in the protected age group between the ages of forty and seventy
(2) his employment with the defendant was involuntarily terminated,
(3) he was qualified to perform the job that he was employed to perform, and
(4) he was replaced by a person outside the protected age group comprising individuals between the ages of forty and seventy.

See, Belanger v. Keydril Co., 596 F.Supp. 823 (E.D.La.1984). A review of the trial record indicates Lege meets the first three of these four criteria, however, McCall produced evidence at trial which indicated Lege was replaced by Captain Benny Cozzie who was age forty-four. Therefore, Lege never proved a prima facie case of age discrimination, and the jury verdict is not manifestly erroneous. Louisiana law is well settled that a Court of Appeal may not set aside a jury's finding of fact in the absence of manifest error unless it is clearly wrong. Rosell v. Esco, 549 So.2d 840 (La.1989). Since we have found no manifest error, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, Lege alleges the jury erred in failing to find that he was a handicapped person within the meaning of La.R.S. 46:2251. Lege argues he was a handicapped person within the meaning of this statute because he was perceived by his employer as having a physical impairment which substantially limited his ability to perform his work. We disagree. La.R.S. 46:2253(1) states:

(1) "Handicapped person" means any person who has an impairment which substantially limits one or more life activities or (a) has a record of such an impairment or (b) is regarded as having such an impairment.

Under this statute, a person is only considered handicapped if his impairment substantially limits one or more of life's major activities. The record indicates Lege eventually obtained employment as a captain on another boat with another company. This indicates that any existing health condition which he has did not substantially limit his activities to the point that he would be considered handicapped. Furthermore, the record also reveals that Lege, himself, testified that he did not consider himself to be a handicapped individual. Accordingly, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NUMBER THREE

In this assignment of error, Lege alleges the trial court erred in refusing to *188 instruct the jury that he was entitled to recover damages under La.R.S. 46:2251 et seq. if he was terminated because he was perceived by his employer as being handicapped. The law on the review of a jury instruction can be found in Doyle v. Picadilly Cafeterias, 576 So.2d 1143 (La.App. 3d Cir. 1991) which states the following:

Adequate jury instructions are those which fairly and reasonably point up the issues and which provide correct principles of law for the jury to apply to those issues. The adequacy of jury instructions must be determined in light of the jury instructions as a whole. Evangeline Farmers Cooperative v. Fontenot, 565 So.2d 1040 (La.App. 3rd Cir.1990); Kaplan v. Missouri-Pacific Railroad Co., 409 So.2d 298 (La.App. 3rd Cir.1981). The trial judge is under no obligation to give any specific jury instructions that may be submitted by either party; he must, however, correctly charge the jury. Oatis v. Catalytic, Inc., 433 So.2d 328 (La.App. 3rd Cir.), writ denied. 441 So.2d 210, 215 (La. 1983). An appellate court must exercise great restraint before overturning a jury verdict on the suggestion that the instructions were so erroneous as to be prejudicial. Cuccia v. Cabrejo, 429 So.2d 232 (La.App. 5th Cir.), writ denied, 434 So.2d 1097 (La.1983).

A review of the record does indicate that the trial court instructed the jury regarding the employer's perception of Lege as a handicapped individual.

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Bluebook (online)
625 So. 2d 185, 4 Am. Disabilities Cas. (BNA) 848, 1993 La. App. LEXIS 2048, 1993 WL 188925, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lege-v-nf-mccall-crews-inc-lactapp-1993.