Pierce v. STATE, OFFICE OF LEGISLATIVE AUD.

984 So. 2d 61, 2008 WL 398885
CourtLouisiana Court of Appeal
DecidedFebruary 8, 2008
Docket2007 CA 0230
StatusPublished
Cited by6 cases

This text of 984 So. 2d 61 (Pierce v. STATE, OFFICE OF LEGISLATIVE AUD.) 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
Pierce v. STATE, OFFICE OF LEGISLATIVE AUD., 984 So. 2d 61, 2008 WL 398885 (La. Ct. App. 2008).

Opinion

984 So.2d 61 (2008)

Devery PIERCE
v.
STATE of Louisiana, through the OFFICE OF the LEGISLATIVE AUDITOR and Dr. Daniel G. Kyle.

No. 2007 CA 0230.

Court of Appeal of Louisiana, First Circuit.

February 8, 2008.
Writ Denied April 25, 2008.

*63 John Dale Powers, Jeffrey J. Guidry, Steven H. Watterson, Baton Rouge, LA, for Plaintiff-Appellee, Devery Pierce.

Murphy J. Foster, III, Yvonne R. Olinde, Baton Rouge, LA, for Defendants-Appellants, State of Louisiana through the Office of the Legislative Auditor and Dr. Daniel G. Kyle.

Before CARTER, C.J., PETTIGREW, and WELCH, JJ.

PETTIGREW, J.

In the instant case, plaintiff filed a petition for damages against the defendants alleging that she was terminated from her employment as a result of disability discrimination. Following a bench trial, the trial court rendered judgment in favor of plaintiff in the amount of $50,000.00. For the reasons set forth more fully below, we reverse.

FACTS AND PROCEDURAL HISTORY

From June 1982 through her termination on November 15, 2002, plaintiff, Devery Pierce, was employed by the Office of the Legislative Auditor for the State of Louisiana ("OLA"). According to the record, Ms. Pierce originally started out as a Staff Auditor and worked her way up to Assistant Director of Audit in 1999, the position she held at the time of her termination. At all pertinent times hereto, Dr. Daniel G. Kyle was employed by the OLA as the Legislative Auditor.

In 1996, employees of the OLA were notified in an interoffice memorandum that Dr. Kyle was encouraging all staff members to "join the office's Toastmaster Program to enhance his or her professional development and growth." The memorandum also included the following directive:

As you know, Dr. Kyle has made the Toastmaster Program a formal portion of our office curriculum. The Training Catalog requires participation by all Staff Auditor Is and IIs. The office encourages participation by all staff. After deliberation, management decided to require participation in the Toastmaster Program by Senior Auditor Is instead of Staff Auditor Is and IIs. This means a Senior I must actively participate in our Toastmaster Program before being considered for a Senior Auditor II position. The Toastmaster Program is open to all staff. Speech topics should be on technical issues when the type of speech to be given is conducive to a technical topic.

In a subsequent memorandum dated July 26, 2002, Dr. Kyle notified employees of the OLA of a change in the policy concerning participation in the Toastmaster Program. The pertinent portions of this memorandum follow:

Since being appointed Legislative Auditor in 1989, I have encouraged each employee of this office to participate in the Toastmasters program to gain practical experience in communicating effectively. Many of you have done so and are to be commended for attaining the Competent Toast Master designation. Participation in Toastmasters is part of *64 the office training curriculum for Senior Auditor 1s.
. . . .
The ability to speak confidently and articulately before large or small groups is a critical requirement for staff in management positions. Therefore, I am requiring that, effective August 1, 2002, applicants for Senior Auditor 2 and higher level positions must have attained the Competent Toast Master designation in order to be eligible for promotion.
Employees currently in Senior Auditor 2 and higher level positions who are not Certified Toast Masters will have three years, until July 31, 2005, to attain this designation. Those who have not attained the Certified Toast Master designation by July 31, 2005 will be reclassified to the Senior Auditor 1 level.

On August 20, 2002, Ms. Pierce provided Dr. Kyle with a "Notice of Disability" stating that she suffered from a "medical condition" that made it "difficult, if not impossible" for her to participate in the Toastmaster Program. However, Ms. Pierce further stated, "In an effort to meet the new requirement, I have been and will continue to attend Toast Master meetings to achieve the Toast Master designation that you are now requiring of senior management."

Attached to Ms. Pierce's August 20, 2002 memorandum was a letter dated August 9, 2002, from her treating physician, Dr. Joseph A. Grizzaffi. According to Dr. Grizzaffi, Ms. Pierce had been under his care since April 1, 1989, and was currently being treated for Generalized Anxiety Disorder. Although Dr. Grizzaffi opined that Ms. Pierce's participation in the Toastmaster Program would be counter productive and actively detrimental to her emotional well-being and recommended that Ms. Pierce be excused from participating in the Toastmaster Program, he did acknowledge that Ms. Pierce is capable of speaking on issues "directly related to her work." Dr. Grizzaffi noted further, "As long as Mrs. Pierce is talking about something she knows very well and which is very factual such as things associated with her job as an auditor she can function reasonably well."

According to Ms. Pierce, she never refused to attend Toastmaster meetings. However, the record reflects she did not attend her first meeting until March 2002, and then only attended five additional meetings, all in 2002. Moreover, it was not until July 2002 that Ms. Pierce participated in the only speech evaluation she completed in connection with the Toastmaster Program. Ms. Pierce testified that she considered the Toastmaster Program to be an insignificant portion of her job and resented the fact that her supervisor, Robbie Robinson, dwelt on her failure to participate in the program as was required by Dr. Kyle.

In a September 20, 2002 evaluation, Ms. Pierce's supervisor identified, among other things, her failure to participate in the Toastmaster Program. Mr. Robinson indicated that he would continue to work with Ms. Pierce and encourage her participation in the Toastmaster Program, noting that "as a member of management her lack of participation has professionally impacted her relationship with [him] and upper management in this office." Mr. Robinson also addressed the fact that Ms. Pierce seemed to become too personally involved in the emotional affairs of her staff.

Following her September evaluation, Ms. Pierce began a written dialogue with Mr. Robinson and Dr. Kyle consisting of memoranda and emails, wherein she questioned Mr. Robinson's evaluation of her performance, requested specific examples and explanations from Mr. Robinson and *65 Dr. Kyle regarding their complaints about her actions as a supervisor, and even challenged Dr. Kyle's ability to evaluate her performance. Ultimately, Ms. Pierce met with Mr. Robinson and the OLA's Human Resource Director on November 15, 2002, wherein Mr. Robinson discussed what was expected of Ms. Pierce and the commitment that was required of her to avoid termination. Ms. Pierce was asked to agree to three items: (1) that she would not send anymore correspondence regarding her evaluation; (2) that she would actively participate in the Toastmaster Program beginning with the next meeting and would give three speeches and complete three roles within 90 days; and (3) that she would resume a professional attitude as an assistant director. When asked if she intended to comply, Ms. Pierce's response to all three items was "No I can not agree to do that." At that point, Mr. Robinson advised Ms. Pierce that her employment was being terminated.

Subsequently, on January 9, 2003, Ms. Pierce filed suit against the OLA and Dr.

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984 So. 2d 61, 2008 WL 398885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pierce-v-state-office-of-legislative-aud-lactapp-2008.