Tolliver v. CONCORIDA WATERWORKS DIST. 1

735 So. 2d 680, 1999 WL 220258
CourtLouisiana Court of Appeal
DecidedFebruary 10, 1999
Docket98 00449
StatusPublished
Cited by6 cases

This text of 735 So. 2d 680 (Tolliver v. CONCORIDA WATERWORKS DIST. 1) 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
Tolliver v. CONCORIDA WATERWORKS DIST. 1, 735 So. 2d 680, 1999 WL 220258 (La. Ct. App. 1999).

Opinion

735 So.2d 680 (1999)

Eligah TOLLIVER, Plaintiff-Appellant,
v.
CONCORDIA WATERWORKS DISTRICT #1, Defendants-Appellee.

No. 98 00449.

Court of Appeal of Louisiana, Third Circuit.

February 10, 1999.
Rehearing Denied April 14, 1999.
Writ Denied July 2, 1999.

*681 Randall Gordon Wells, Rodney Messina, Baton Rouge, for Eligah Tolliver, Plaintiff-appellant.

Linda Lee Kincaid, Vidalia, for Concordia Waterworks District # 1, defendant-appellee.

BEFORE: THIBODEAUX, COOKS, WOODARD, DECUIR, and PETERS, Judges.

COOKS, J.

Eligah Tolliver ("Tolliver") appeals the trial court's summary dismissal of his suit against Concordia Waterworks District # 1 ("District"). The suit alleged Tolliver's constitutional rights were violated when the District terminated his employment without affording him a pre-termination hearing. For reasons which follow, we affirm the trial court's decision.

BACKGROUND FACTS

Tolliver was employed as a maintenance person/meter reader/backhoe operator with the District from April, 1980 until July, 1996 when he was terminated. The District is a governmental employer—a political subdivision of the State of Louisiana. Tolliver was orally hired; no written contract was ever executed by the parties. He was hired for an indefinite period of time and he was free to quit his job at any time. Tolliver received an hourly wage for the work he provided. He never renegotiated the conditions of his employment with the District.

On July 28, 1996, Tolliver was "on call," and required to carry a pager in order to respond quickly to water system problems or failures. When the pager sounded, Tolliver's immediate supervisor (Charles Renfrow) instructed him to telephone the pager company to receive information and direction regarding possible interruption and restoration of water service to customers. When Renfrow was called by the pager company because Tolliver did not answer the page on the date in question, Renfrow contacted Tolliver to inquire why he had not responded. Tolliver claimed that the pager had not beeped. Because this was the second time Tolliver allegedly had not answered the pager while on call, Renfrow terminated his employment. On August 5, 1996, the District sent Tolliver a letter explaining that his job had been terminated for twice failing to respond to a call on the pager. The District further advised Tolliver that he could speak to the Board regarding his termination at its next regular meeting scheduled for August 20, 1996, but Tolliver failed to appear.

PROCEDURAL HISTORY

On April 28, 1997, Tolliver filed suit against the District seeking damages and asserting he was unlawfully terminated from his employment. Because the District did not afford him a pre-termination hearing, the suit alleged, inter alia, violation(s) of Tolliver's constitutional rights to substantive and/or procedural due process guaranteed by Fourteenth Amendment to the Constitution of the United States and/or by Article 1, §§ 2 and/or 4 of the Louisiana Constitution of 1974.

The District responded by filing a Motion for Summary Judgment with supporting memorandum seeking dismissal of plaintiffs suit. Tolliver filed pleadings opposing the District's Motion for Summary Judgment and he motioned the court for *682 Partial Summary Judgment on the liability issue.

The trial court granted the District's Motion for Summary Judgment finding the United States Fifth Circuit Court of Appeals' holding in Guillory v. St. Landry Parish Police Jury, 802 F.2d 822 (5th Cir.1986), cert. denied, 482 U.S. 916, 107 S.Ct. 3190, 96 L.Ed.2d 678 (1987) was dispositive in this instance.

STANDARD OF REVIEW

In Hartman v. Vermilion Parish Police Jury, 94-893, p. 4 (La.App. 3 Cir.3/1/95); 651 So.2d 476, 478, writ denied, 95-0778 (La.5/5/95); 654 So.2d 326, this Court stated:

Appellate courts review summary judgements de novo, applying the same standards of review used by trial courts in rendering the judgements at the district court level. Reynolds v. Select Properties, Ltd., 634 So.2d 1180, 1183 (La. 1994). A motion for summary judgement is properly granted if there is no genuine issue of material fact, and the mover is entitled to judgement as a matter of law. La.Code Civ.P. art. 966. The mover bears the burden of proving that no genuine issue of material fact exists and that he is entitled as a matter of law to the requested judgement. All summary judgement evidence is scrutinized closely and any inferences to be drawn from it are viewed in a light most favorable to the party opposing the motion. In addition, all allegations made by the opposing party are taken as true and any doubt arising between his allegations and the mover's is resolved in his favor. Self v. Walker Oldsmobile Co., Inc., 614 So.2d 1371 (La.App. 3 Cir. 1993).

LAW AND ANALYSIS

Louisiana's law on employment at will is codified in Louisiana Civil Code Article 2747 which provides:

A man is at liberty to dismiss a hired servant attached to his person or family, without assigning any reason for so doing. The servant is also free to depart without assigning any cause.

The Supreme Court in Pitcher v. United Oil & Gas Syndicate, 139 So. 760, 761, 174 La. 66 (1932), enunciating the principle underlying this doctrine, stated:

An employee is never presumed to engage his services permanently, thereby cutting himself off from all chances of improving his condition; indeed, in this land of opportunity it would be against public policy and the spirit of our institutions that any man should thus handicap himself; and the law will presume almost juris et de jure that he did not so intend. And if the contract of employment be not binding for the whole term of such employment, then it cannot be binding upon the employer; there would be lack of "mutuality."

When employment is for an indefinite term, it is terminable at the will of either the employer or the employee. Williams v. Delta Haven, Inc., 416 So.2d 637 (La. App. 2 Cir.1982); Pechon v. National Corporation Service, 100 So.2d 213, 234 La. 397 (1958). "Absent a specific contract or agreement establishing a fixed term of employment, an employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge." Williams, 416 So.2d at 638. "Employment at will" applies even to government employees who are not protected by civil service provisions as well as to private industry employees. See Mix v. University of New Orleans, 609 So.2d 958 (La.App. 4 Cir.1992), writ denied 612 So.2d 83 (1993). There are no "public policy exceptions" to this doctrine. Guillory, 802 F.2d 822.

Employment at will stands in stark contrast to those relationships which bestow upon certain employees a property interest and thereby fall within the purview of the due process clauses found in the United States and Louisiana Constitutions. Such an interest "exists only where *683 the employee has an express or implied right to continued employment." White v. Mississippi State Oil and Gas Board,

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Washington v. Lopinto
E.D. Louisiana, 2021
Kerry Blakemore v. Town of Grambling
Louisiana Court of Appeal, 2020
Mederos v. St. Tammany Parish Government
199 So. 3d 30 (Louisiana Court of Appeal, 2016)
Veronica Glover v. City Court of Shreveport
478 F. App'x 236 (Fifth Circuit, 2012)
Opinion Number
Louisiana Attorney General Reports, 2004
McJamerson v. Grambling State University
769 So. 2d 168 (Louisiana Court of Appeal, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
735 So. 2d 680, 1999 WL 220258, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tolliver-v-concorida-waterworks-dist-1-lactapp-1999.