STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 05-1401
TALIB EL-AMIN
VERSUS
RAPIDES PARISH SCHOOL BOARD
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 217,283 - E HONORABLE BRUCE C. BENNETT JR., DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Michael G. Sullivan, Billy Howard Ezell, and James T. Genovese, Judges.
REVERSED AND REMANDED.
Brian D. Cespiva Gravel, Cespiva, & Wilkerson P. O. Box 1792 Alexandria, LA 71309-1792 (318) 487-4501 Counsel for Plaintiff/Appellant: Talib El-Amin Laura Norton Sylvester Passman & Michiels P. O. Box 13020 Alexandria, LA 71315-3020 (318) 445-4516 Counsel for Defendant/Appellee: Rapides Parish School Board EZELL, JUDGE.
Talib El-Amin appeals a summary judgment rendered in favor of the Rapides
Parish School Board (School Board). Mr. El-Amin filed suit against the School
Board claiming that the School Board breached their employment contract by
terminating him. On appeal he claims the trial court erred in finding that he gave
false statements on his employment application regarding his criminal history,
thereby nullifying his employment contract.
FACTS
In 2001, Mr. El-Amin filled out an application for employment with the School
Board. Later, in September 2002, Mr. El-Amin filled out an application for a position
as a substitute teacher with the School Board. One of the questions on the application
asked, “Have you ever been arrested for any crime, whether a felony or misdemeanor?
If yes, give details below including conviction or guilty pleas.” In reply Mr. El-Amin
stated, “Please contact: Richard V. Burnes Attorney at Law (318) 442-4300.”
After Mr. El-Amin submitted this application, he was interviewed by a Mr.
McGee and a Ms. Miller. He also interviewed with the principal of North Bayou
Rapides Elementary, Mr. Patrick. There was no discussion about his criminal history,
and the principal indicated that he would check the references. Mr. El-Amin stated
that he worked as a substitute teacher for the School Board in 2002.
Around December 2002, Mr. El-Amin began work for the School Board as a
child specific aide. He once again filled out some paperwork with the School Board
which was signed on January 14, 2003. In this paperwork, Mr. El-Amin indicated
that he had been charged with a misdemeanor but offered no explanation on the space
provided. He then indicated that he was convicted of a misdemeanor and provided
that it was for “criminal mischief” in the space provided. He further checked that he
1 had been charged with a felony and indicated “Contact Richard Burns 442-4300” in
the space provided. He checked the box that he had never been convicted of a felony.
On August 12, 2003, Mr. El-Amin signed a contract as a child specific aide with the
Rapides Parish School Board for a period from August 18, 2003 to May 31, 2004.
In his deposition testimony, Mr. El-Amin indicated that he had pled guilty to
some charges concerning insurance fraud on August 11, 2003. He agreed that he did
not notify the School Board of his court appearance or plea.
On December 11, 2003, Mr. El-Amin received a letter from the School Board
notifying him that he was going to be terminated before the end of his contract. After
additional correspondence, a pre-termination conference was held on January 26,
2004. The School Board terminated Mr. El-Amin based upon his prior arrest. Mr.
El-Amin then filed the present suit for breach of contract.
On July 11, 2005, the School Board filed a motion for summary judgment. The
trial court granted the School Board’s motion for summary judgment and dismissed
Mr. El-Amin’s claims against it. Mr. El-Amin filed the present appeal.
DISCUSSION
Grants of summary judgment are reviewed by the appellate courts de novo,
using the same criteria that the trial court used in determining whether summary
judgment was appropriate, i.e., whether there is a genuine issue of material fact and
whether the mover is entitled to judgment as a matter of law. Champagne v. Ward,
03-3211 (La. 1/19/05), 893 So.2d 773. Louisiana Code of Civil Procedure Article
966(C)(2) provides that the mover bears the initial burden of proof. If the mover
meets the initial burden, the burden then shifts to the opposing party to establish that
he will be able to satisfy the evidentiary burden at trial. Champagne, 893 So.2d 773.
If the opposing party fails to meet this burden, there is no genuine issue and the
2 mover is entitled to summary judgment. Id.
A genuine issue of material fact “exists where reasonable persons, after
considering the evidence, could disagree.” P. Charles Calahan, APLC v. Scottsdale
Ins. Co., 05-98, p.12 (La.App. 3 Cir. 6/1/05), 903 So.2d 1251, 1259 (quoting Suire
v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466, p. 11 (La.
4/12/05), 907 So.2d 37, 48). “‘A fact is ‘material’ if it is one that would matter at trial
on the merits.’” Id. at 1260.
In its reasons for judgment, the trial court found that Mr. El-Amin had not been
forthcoming with his answer on the application for employment regarding his status
as a defendant in criminal proceedings and that the School Board did not have a duty
to investigate the application. The trial court found that Mr. El-Amin’s silence on the
pending felony charges resulted in error sufficient to vitiate consent.
The employment contract signed by Mr. El-Amin on August 12, 2003, did
provide, in pertinent part:
The parties agree that the Board’s execution of this contract with Employee is based in part on information supplied by Employee in Employee’s application for employment; in the event that Employee supplies false or misleading information or omits material information from the application which, if known, would have likely have affected the Board’s consideration of this employment, then the Board may terminate this contract provided it complies with all laws regarding tenure and dismissal.
“Consent may be vitiated by error, fraud, or duress.” La.Civ.Code art. 1948.
“Error vitiates consent only when it concerns a cause without which the obligation
would not have been incurred and that cause was known or should have been known
to the other party.” La.Civ.Code art. 1949.
In Ostrolenk v. Louise S. McGehee School, 402 So.2d 237 (La.App. 4 Cir.),
writ denied, 404 So.2d 1259 (La.1981), the fourth circuit held that a teacher’s
omission on her employment application of her termination at another private school
3 during the previous year established that error existed as to the principal cause of the
contract. This omission rendered the contract null from its beginning.
In Bischoff v. Brothers of the Sacred Heart, 416 So.2d 348 (La.App. 4 Cir.
1982), the fourth circuit again found that there was a breach of a teaching contract
when a teacher hired at a Catholic school checked off “Practicing Catholic: Yes” and
under “Marital Status” noted “Married” when the applicant had been married in a
Catholic church, divorced, and remarried. The court found that the applicant had
intentionally concealed his marital status because a latter conversation with one of the
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
CA 05-1401
TALIB EL-AMIN
VERSUS
RAPIDES PARISH SCHOOL BOARD
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 217,283 - E HONORABLE BRUCE C. BENNETT JR., DISTRICT JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of Michael G. Sullivan, Billy Howard Ezell, and James T. Genovese, Judges.
REVERSED AND REMANDED.
Brian D. Cespiva Gravel, Cespiva, & Wilkerson P. O. Box 1792 Alexandria, LA 71309-1792 (318) 487-4501 Counsel for Plaintiff/Appellant: Talib El-Amin Laura Norton Sylvester Passman & Michiels P. O. Box 13020 Alexandria, LA 71315-3020 (318) 445-4516 Counsel for Defendant/Appellee: Rapides Parish School Board EZELL, JUDGE.
Talib El-Amin appeals a summary judgment rendered in favor of the Rapides
Parish School Board (School Board). Mr. El-Amin filed suit against the School
Board claiming that the School Board breached their employment contract by
terminating him. On appeal he claims the trial court erred in finding that he gave
false statements on his employment application regarding his criminal history,
thereby nullifying his employment contract.
FACTS
In 2001, Mr. El-Amin filled out an application for employment with the School
Board. Later, in September 2002, Mr. El-Amin filled out an application for a position
as a substitute teacher with the School Board. One of the questions on the application
asked, “Have you ever been arrested for any crime, whether a felony or misdemeanor?
If yes, give details below including conviction or guilty pleas.” In reply Mr. El-Amin
stated, “Please contact: Richard V. Burnes Attorney at Law (318) 442-4300.”
After Mr. El-Amin submitted this application, he was interviewed by a Mr.
McGee and a Ms. Miller. He also interviewed with the principal of North Bayou
Rapides Elementary, Mr. Patrick. There was no discussion about his criminal history,
and the principal indicated that he would check the references. Mr. El-Amin stated
that he worked as a substitute teacher for the School Board in 2002.
Around December 2002, Mr. El-Amin began work for the School Board as a
child specific aide. He once again filled out some paperwork with the School Board
which was signed on January 14, 2003. In this paperwork, Mr. El-Amin indicated
that he had been charged with a misdemeanor but offered no explanation on the space
provided. He then indicated that he was convicted of a misdemeanor and provided
that it was for “criminal mischief” in the space provided. He further checked that he
1 had been charged with a felony and indicated “Contact Richard Burns 442-4300” in
the space provided. He checked the box that he had never been convicted of a felony.
On August 12, 2003, Mr. El-Amin signed a contract as a child specific aide with the
Rapides Parish School Board for a period from August 18, 2003 to May 31, 2004.
In his deposition testimony, Mr. El-Amin indicated that he had pled guilty to
some charges concerning insurance fraud on August 11, 2003. He agreed that he did
not notify the School Board of his court appearance or plea.
On December 11, 2003, Mr. El-Amin received a letter from the School Board
notifying him that he was going to be terminated before the end of his contract. After
additional correspondence, a pre-termination conference was held on January 26,
2004. The School Board terminated Mr. El-Amin based upon his prior arrest. Mr.
El-Amin then filed the present suit for breach of contract.
On July 11, 2005, the School Board filed a motion for summary judgment. The
trial court granted the School Board’s motion for summary judgment and dismissed
Mr. El-Amin’s claims against it. Mr. El-Amin filed the present appeal.
DISCUSSION
Grants of summary judgment are reviewed by the appellate courts de novo,
using the same criteria that the trial court used in determining whether summary
judgment was appropriate, i.e., whether there is a genuine issue of material fact and
whether the mover is entitled to judgment as a matter of law. Champagne v. Ward,
03-3211 (La. 1/19/05), 893 So.2d 773. Louisiana Code of Civil Procedure Article
966(C)(2) provides that the mover bears the initial burden of proof. If the mover
meets the initial burden, the burden then shifts to the opposing party to establish that
he will be able to satisfy the evidentiary burden at trial. Champagne, 893 So.2d 773.
If the opposing party fails to meet this burden, there is no genuine issue and the
2 mover is entitled to summary judgment. Id.
A genuine issue of material fact “exists where reasonable persons, after
considering the evidence, could disagree.” P. Charles Calahan, APLC v. Scottsdale
Ins. Co., 05-98, p.12 (La.App. 3 Cir. 6/1/05), 903 So.2d 1251, 1259 (quoting Suire
v. Lafayette City-Parish Consol. Gov’t, 04-1459, 04-1460, 04-1466, p. 11 (La.
4/12/05), 907 So.2d 37, 48). “‘A fact is ‘material’ if it is one that would matter at trial
on the merits.’” Id. at 1260.
In its reasons for judgment, the trial court found that Mr. El-Amin had not been
forthcoming with his answer on the application for employment regarding his status
as a defendant in criminal proceedings and that the School Board did not have a duty
to investigate the application. The trial court found that Mr. El-Amin’s silence on the
pending felony charges resulted in error sufficient to vitiate consent.
The employment contract signed by Mr. El-Amin on August 12, 2003, did
provide, in pertinent part:
The parties agree that the Board’s execution of this contract with Employee is based in part on information supplied by Employee in Employee’s application for employment; in the event that Employee supplies false or misleading information or omits material information from the application which, if known, would have likely have affected the Board’s consideration of this employment, then the Board may terminate this contract provided it complies with all laws regarding tenure and dismissal.
“Consent may be vitiated by error, fraud, or duress.” La.Civ.Code art. 1948.
“Error vitiates consent only when it concerns a cause without which the obligation
would not have been incurred and that cause was known or should have been known
to the other party.” La.Civ.Code art. 1949.
In Ostrolenk v. Louise S. McGehee School, 402 So.2d 237 (La.App. 4 Cir.),
writ denied, 404 So.2d 1259 (La.1981), the fourth circuit held that a teacher’s
omission on her employment application of her termination at another private school
3 during the previous year established that error existed as to the principal cause of the
contract. This omission rendered the contract null from its beginning.
In Bischoff v. Brothers of the Sacred Heart, 416 So.2d 348 (La.App. 4 Cir.
1982), the fourth circuit again found that there was a breach of a teaching contract
when a teacher hired at a Catholic school checked off “Practicing Catholic: Yes” and
under “Marital Status” noted “Married” when the applicant had been married in a
Catholic church, divorced, and remarried. The court found that the applicant had
intentionally concealed his marital status because a latter conversation with one of the
school leaders revealed that he knew he would not have been hired as a religion
teacher if he had revealed his true status.
In LaCross v. Cornerstone Christian Academy of Lafayette, 04-341 (La.App.
3 Cir. 12/15/04), 896 So.2d 105, writ denied, 05-128 (La. 3/24/05), 896 So.2d 1037,
this court held that a teacher’s answer on an employment application that she did not
drink alcohol, and her signature on the application indicating that her answers were
complete and correct, constituted induced error that vitiated the school’s consent to
the employment contract. The summer after the teacher had executed the contract,
the school learned that she had gone out with co-workers and admitted drinking four
to five beers.
In all of these cases, it was obvious that the applicants for teaching positions
had intentionally withheld information or lied on their applications. While Mr. El-
Amin may not have given as detailed information as the School Board would like,
there is a question of whether he purposefully withheld information. He was very
forthcoming that he had been charged with a felony and indicated on the form whom
the School Board could contact regarding the charges. We do note that Mr. El-Amin
signed the actual contract of employment the day after he pled guilty to certain felony
4 offenses. He agrees that he did not notify the School Board of his plea or court
appearance. However, there are questions of material fact that need to be resolved
as to whether the School Board’s consent to the employment contract was vitiated by
error. The School Board knew that Mr. El-Amin had been charged with a felony, yet
it either failed or refused to seek and inquire further.
For the reasons set forth in this opinion, the trial court’s grant of summary
judgment in favor of the Rapides Parish School Board is reversed, and this case is
remanded to the trial court for further proceedings. Costs of this appeal are assessed
to the Rapides Parish School Board.