Danella Taylor Sonnier v. Diversified Healthcare-Lake Charles, LLC D/B/A Lake Charles Care Center

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

22-420

DANELLA TAYLOR SONNIER

VERSUS

DIVERSIFIED HEALTHCARE-LAKE CHARLES, LLC

D/B/A LAKE CHARLES CARE CENTER

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APPEAL FROM THE

FOURTEENTH JUDICIAL DISTRICT COURT

PARISH OF CALCASIEU, NO. 2017-2174

HONORABLE DERRICK D. KEE, DISTRICT JUDGE

**********

SHANNON J. GREMILLION

JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Ledricka J. Thierry,

Judges.

AFFIRMED AS AMENDED.

Edward J. Fonti

Jones, Tete, Fonti & Belfour, L.L.P.

Post Office Box 1930

Lake Charles, LA 70602-1930

(337) 439-8315

COUNSEL FOR PLAINTIFF/APPELLEE:

Danella Taylor Sonnier

Bradley Guinn

Daniel T. Price

Larry M. Roedel

Roedel Parsons Blache Fontana Piontek & Pisano, A L.C.

8440 Jefferson Highway, Suite 301

Baton Rouge, LA 70809

(225) 929-7033

COUNSEL FOR DEFENDANT/APPELLANT:

Diversified Healthcare-Lake Charles, LLC

GREMILLION, Judge.

Defendant/Appellant, Diversified Healthcare Lake Charles, L.L.C., d/b/a

Lake Charles Care Center (LCCC), appeals the judgment of the trial court in favor

of the Plaintiff/Appellee, Danella Taylor Sonnier. For the following reasons, we

affirm as amended.

FACTUAL AND PROCEDURAL BACKGROUND

LCCC is a nursing home in Lake Charles. Sonnier was employed at LCCC

beginning in 2009 and was terminated on May 30, 2016, despite having recently

been promoted to the Assistant Director of Nursing (ADON). Sonnier filed suit

against LCCC in May 2017, alleging that she was wrongfully terminated because

she instructed a co-worker, Tangela Matthews (Matthews), not to alter the date of

the onset of a patient’s (known as Patient 192) bedsore, at the direction of the

Director of Nursing (DON), Tana White (White), resulting in a citation from the

Louisiana Department of Health and Hospitals (DHH), which had been conducting

a week-long inspection of the facility. Sonnier’s petition stated that LCCC

terminated her because “Defendant’s agents, Ms. White and Mr. Stewart, believed

that Plaintiff’s cooperation with the Department’s agents who conducted the

inspection/audit assisted the Department’s agents in discovery of deficiencies for

which Defendant was cited.” An amended petition alleged that she was wrongfully

terminated for encouraging Matthews to remove the false record and/or because

White and Stewart believed that Sonnier herself had removed the inaccurate record.

In January 2022, LCCC filed a motion for summary judgment, to which was

attached the affidavits of Eric Whalen and Brian May stating Sonnier was an at-will

employee and that they were never notified by her of any violation of state law, the

deposition of Sonnier, Sonnier’s petition and first supplemental and amended

petition for damages, and the deposition of White. In sum, LCCC argued that there

was no action for wrongful termination because of Louisiana’s employment-at-will

standard; that the requirements of the Whistleblower Statute were not met; that

Sonnier’s LUPTA claim failed as a matter of law; that Sonnier’s contract-based

claims failed; and, that Sonnier’s abuse-of-rights claim was without merit.

Following a January 12, 2022 hearing on LCCC’s motion for summary

judgment, the trial court rendered a judgment on February 11, 2022, finding that

there were genuine issues of material fact, that Defendant’s objections to the

affidavit of Edward J. Fonti and exhibits 1,5,6,10, and 12 were overruled, and that

LCCC’s motion for summary judgment was denied.

Following a one-day bench trial on February 1, 2022, the trial court gave

extensive oral reasons for judgment in open court on February 23, 2023, and awarded

Sonnier $458,727.01, finding that LCCC violated the Whistleblower Statute, the

Louisiana Unfair Trade Practices and Consumer Protection law (LUTPA), and the

abuse-of-rights doctrine. Sonnier, thereafter, filed a post-trial affidavit of her

attorney, requesting attorney fees of $104,177.50. LCCC filed an objection to the

post-trial affidavit. A judgment was rendered on March 7, 2022, including the award

of $104,177.50 in attorney fees. LCCC now appeals.

ASSIGNMENTS OF ERROR

LCCC now appeals the interlocutory judgment denying its motion for

summary judgment and the final judgment assigning as error:

1. The trial court erred in denying Lake Charles Care Center’s motion

for summary judgment by admitting incompetent and late-filed

evidence.

2. The trial court erred in finding that Sonnier proved all of the

elements of her whistleblower claim.

3. The trial court erred in applying the abuse-of-rights doctrine in an

employment-at-will termination case.

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4. The trial court erred in concluding that terminating an at-will

employee is an unfair trade practice.

5. The trial court erred in awarding Sonnier attorney’s fees when she

failed to present any evidence of attorney’s fees.

6. The trial court erred in awarding Sonnier legal interest because she

did not pray for legal interest and her damages do not sound in tort.

7. The trial court erred in awarding Sonnier an excessive damages

award.

8. The trial court erred in calculating Sonnier’s lost wages damages.

DISCUSSION

Summary Judgment

At the hearing on the motion for summary judgment, LCCC objected to the

introduction of certain evidentiary items relating to procedural issues such as timing

and the manner in which they were introduced. LCCC objected to the admission of

Exhibit 1, 5, 6, 10, 11, 12, and 13, primarily because they were allegedly not properly

admitted through deposition testimony authenticating the documents. As it turns out,

all of the documents were LCCC’s own documents that were submitted in response

to a request for production except for Exhibit 13, which was the written reasons a

trial court issued for judgment in a whistleblower case where Sonnier’s counsel

represented the plaintiff; that judgment was not appealed, so there was no published

opinion.

In both her reply brief and amended reply brief, Sonnier states, “LCCC

withdrew its objection to all exhibits.” She does not cite any place in the record for

that claim, and having read the transcript of the hearing, we find no indication that

LCCC withdrew its objection. Nevertheless, we find this issue is rendered moot

because we find the trial court’s denial of LCCC’s summary judgment would stand

in the absence of these “exhibits,” as there were genuine issues of material fact

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relating to Sonnier’s whistleblower claim. Accordingly, this assignment of error is

without merit.

Whistleblower, LUTPA, Abuse of Rights

Is Sonnier a Protected Whistleblower?

In order for one to obtain whistleblower status for retaliatory firing, La.R.S.

23:967 (emphasis added), the Louisiana Whistleblower Act, provides, in pertinent

part:

A. An employer shall not take reprisal against an employee who

in good faith, and after advising the employer of the violation of law:

(1) Discloses or threatens to disclose a workplace act or practice

that is in violation of state law.

(2) Provides information to or testifies before any public body

conducting an investigation, hearing, or inquiry into any violation of

law.

(3) Objects to or refuses to participate in an employment act or

practice that is in violation of law.

B. An employee may commence a civil action in a district court

where the violation occurred against any employer who engages in a

practice prohibited by Subsection A of this Section. If the court finds

the provisions of Subsection A of this Section have been violated, the

plaintiff may recover from the employer damages, reasonable attorney

fees, and court costs.

C. For the purposes of this Section, the following terms shall

have the definitions ascribed below:

(1) “Reprisal” includes firing, layoff, loss of benefits, or any

discriminatory action the court finds was taken as a result of an action

by the employee that is protected under Subsection A of this Section;

however, nothing in this Section shall prohibit an employer from

enforcing an established employment policy, procedure, or practice or

exempt an employee from compliance with such.

(2) “Damages” include compensatory damages, back pay,

benefits, reinstatement, reasonable attorney fees, and court costs

resulting from the reprisal.

D. If suit or complaint is brought in bad faith or if it should be

determined by a court that the employer’s act or practice was not in

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violation of the law, the employer may be entitled to reasonable

attorney fees and court costs from the employee.

We note that the statute does not use “and” or “or” after each subsection, but

the consensus is that (A)1-3 are distinct independent alternatives that would be

subject to analysis as if “or” had been used at the end of each subsection. See La.R.S.

1:3; La.R.S. 1:9. In the recent case of Ladd v. Law Enforcement Dist. for Parish of

Orleans, 22-212, pp.4-5 (La.App. 4 Cir. 10/5/22), 350 So.3d 962, 965-66, the court

reviewed the statute (emphasis added):

Louisiana’s Whistleblower statute is narrowly tailored and

provides protection from reprisal for employees who,

“...after advising the employer of the violation of law:

1) Discloses or threatens to disclose a workplace act or

practice that is in violation of state law.

2) Provides information to or testifies before any public

body conducting an investigation, hearing, or inquiry into

any violation of law.

3) Objects to or refuses to participate in an employment

act or practice that is in violation of law.”

La. R.S. 23:967. Four (4) elements are essential, then, for an employee

to prevail on a Whistleblower claim. To establish protected

Whistleblower status, Ladd must prove that (1) Officer Jacques’

involvement in Robinson’s escapes was actually a workplace act or

practice of OPSO; (2) Ladd advised OPSO of the principal/escape

violation; (3) Ladd either disclosed or threatened to disclose the

violation, provided information to or testified before a public

investigatory agency in relation to the violation, or objected to or

refused to participate in the unlawful actions; and (4) OPSO retaliated

against Ladd as a result. See Hale v. Touro Infirmary, 2004-0003, p.

10 (La. App. 4 Cir. 11/3/04), 886 So.2d 1210, 1216.

Ladd interpreted subsections 1-3 as offering alternatives for meeting the

statute. In Hale v. Touro Infirmary, 04-3 (La.App. 4 Cir. 11/3/04), 886 So.2d 1210,

writ denied, 05-103 (La. 4/24/05), 896 So.2d 1036, relied upon by LCCC and cited

by the Ladd court, an actual violation of a state law was required; vague and

unsubstantiated claims that the defendant violated the Social Work Practice Act

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would not be considered sufficient to state a violation of state law. The Hale court

further elaborated:

[W]e are bound by the language of La. R.S. 23:967, which provides that

an employer may not retaliate against an employee who has notified it

of a workplace practice in violation of law and who either refuses to

participate in the practice or who threatens to publicize the practice. . . .

[T]he Whistleblower Statute only offers protection to a specific class of

employees: those employees who face “reprisals” from their employers

based solely upon an employee’s knowledge of an illegal workplace

practice and his refusal to participate in the practice or intention to

report it. Therefore, the language of the statute leads us to the

conclusion that a violation of law must be established by a plaintiff

under the Whistleblower Statute in order to prevail on the merits of the

case. We are further convinced of this interpretation in light of the

damages clause found in the Whistleblower Statute, La. R.S. 23:967D,

which provides for an award of attorneys’ fees if a plaintiff brings suit

in bad faith or fails to prove a violation of law by the employer. We do

not casually reach this conclusion, but do so after a full analysis of the

legislative history of La. R.S. 23:967.9.

We further agree that the violation of law in question must be

that of a state statute. The first subsection detailing under what

circumstances an employer may not take “reprisals” clearly states that

the employee must be aware of a violation of state law. The two

subsequent subsections prohibit reprisals against employees who not

only know of the violation and report it to their employers, but who also

testify before public bodies or simply refuse to participate in the illegal

activity. Although the language of the statute is inconsistent, the

interpretation that is supported by the structure and that fits best into

the framework of the statute is one that holds the statute to its most

specific terms, i.e., violations of state law only.

Thus, in order to prevail, [the plaintiff] must establish that (1)

[the defendant] violated the law through a prohibited workplace act or

practice; (2) she advised [the defendant] of the violation; (3) she then

refused to participate in the prohibited practice or threatened to

disclose the practice; and (4) she was fired as a result of her refusal to

participate in the unlawful practice or threat to disclose the practice.

Failure to put forth evidence to satisfy any of these elements must result

in a summary judgment in favor of [the defendant].

Id. at 1215-16 (emphasis added in part) (footnotes omitted).

The Hale court omitted mentioning “objecting” as an option to satisfy the

statute. In Kelly v. Dept. of Veterans Affairs, 21-1605 (La.App. 1 Cir 9/14/22)

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(unreported opinion) (emphasis added), another recent opinion, though unpublished,

the four factors were set forth as:

Thus, to defeat defendants’ Motion for Summary Judgment as to

her LWA claim, plaintiff must demonstrate that a genuine issue of

material fact exists that: (1) defendants violated Louisiana law through

a prohibited workplace practice; (2) she advised defendants of the

violation; (3) she then disclosed or threatened to disclose the prohibited

practice or objected to or refused to participate in the prohibited

practice; and (4) she was terminated as a result of the threat to disclose

or because of the disclosure of the prohibited practice or her objection

to or refusal to participate in the prohibited practice. See Melancon v.

Town of Amite City, 2018-0442, 2018-0443 (La. App. 1st Cir. 9/24/18),

261 So.3d 7, 10.

The Kelly court cited Melancon v. Town of Amite City, 18-442, 18-443 (La.App. 1

Cir. 9/24/18), 261 So.3d 7. In Melancon, the requirements are phrased differently:

As a condition precedent to protection under the statute, the employee

must first advise the employer of the violation of law before making the

disclosure. La. R.S. 23:967(A). A violation of the statute occurs if: (1)

the employer violated Louisiana law through a prohibited workplace

practice; (2) the plaintiff advised the employer of the violation; (3) the

plaintiff threatened to disclose or disclosed the prohibited practice; and

(4) the plaintiff was terminated as a result of the threat to disclose or

because of the disclosure of the prohibited practice.

Id. at 10 (emphasis added). The Melancon court did not mention the option of

objecting or refusing to participate but relies on disclosure.

In Derbonne v. State Police Comm’n, 19-1455 (La.App. 1 Cir. 10/14/20), 314

So.3d 861, writ denied, 20-1323 (La. 2/17/21), 310 So3d 1152, the court was faced

with the issue of whether a person who must report as part of their job can be

protected under the Whistleblower Statute. Derbonne was a state employee who

reported violations of law to the State Police Commission, the Governor, the

Legislative Fiscal Office, and the Louisiana Board of Ethics. In summarizing the

purpose and requirements of the statute, the court stated:

The Louisiana Whistleblower Statute protects employees against

reprisal from employers for reporting or refusing to participate in illegal

work practices. The statute targets serious employer conduct that

violates the law. Causey v. Winn-Dixie Logistics, Inc., 2015-0813 (La.

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App. 1 Cir. 12/23/15), 186 So.3d 185, 187, writ not considered, 2016-

0167 (La. 3/24/16), 190 So.3d 1187. The plaintiff must establish an

actual violation of state law under the Louisiana Whistleblower Statute

in order to prevail on the merits of the case. Accardo v. Louisiana

Health Services & Indent. Co., 2005-2377 (La. App. 1 Cir. 6/21/06),

943 So.2d 381, 386. A violation of La. R.S. 23:967 occurs if (1) the

employer violated Louisiana law through a prohibited workplace

practice; (2) the plaintiff advised the employer of the violation; (3) the

plaintiff threatened to disclose or disclosed the prohibited practice; and

(4) the plaintiff experienced a reprisal as a result of the threat to disclose

or because of the disclosure of the prohibited practice. Dobyns v.

University of Louisiana System, 2018-0811 (La. App. 1 Cir. 4/12/19),

275 So.3d 911, 926, writ denied, 2019-00950 (La. 9/24/19), 278 So.3d

977.

Id. at 870 (emphasis added). The court did not list “objecting” as an option, but

Derbonne had already disclosed it to numerous outside agencies.

In Loya v. Lucas, 16-220, p.7 (La.App. 4 Cir. 9/21/16), 201 So.3d 928, 933

(emphasis added), the requirement was set forth as:

The Whistleblower Statute only offers protection to a specific class of

employees: those employees who face “reprisals” from their employers

based solely upon an employee’s knowledge of an illegal workplace

practice and his refusal to participate in the practice or intention to

report it. Id., 04-0003, p. 8, 886 So.2d at 1215.

This language appears to indicate that no disclosure is necessary as long as the

employee intends to disclose or refuses to participate.

In Accardo v. La. Health Servs. & Indem. Co., 05-2377 (La.App. 1 Cir.

6/21/06), 943 So.2d 381 (emphasis added), the court undertook an in-depth analysis

of statutory construction to determine the meaning of “good faith” in the statute. In

deconstructing the meaning the court referred to:

The remaining part of Section A sets forth three different employee

actions that are protected under the statute (referred to as the

“disclosure activities”). We note that each of the Louisiana

Whistleblower Statute’s three specific disclosure activities refers to the

“violation of law” in very specific terms and does not include any

reference to the employee’s good faith or reasonable belief that the

workplace act or practice is a violation of law.

Id. at 385 (emphasis added).

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The Accardo court referenced “disclosure activities.” Disclosing is not the

same as “objecting.” LCCC heavily relies on Sonnier’s failure to disclose to

someone outside of LCCC, to report to an authority, or tell someone at DHH while

they were there conducting the survey. Based on our review of the jurisprudence,

and a plain reading of the statute, we conclude that the plaintiff need not “disclose”

outside of the workplace if one of the other three “disclosure activities” has been

met under the statute. The statute clearly states that “object[ing] to . . . an

employment act or practice that is in violation of the law,” is sufficient to meet the

“disclosure activity” portion of the statute. La.R.S. 23:967(A)(3). Considering the

jurisprudence, this is the minimal level that must be met.

Sonnier is protected under the Whistleblower Statute if 1) she advised LCCC

of a violation of law that was a workplace act or practice; 2) she objected to the

illegal activity, and 3) she was retaliated against for doing so.

The trial court’s factual findings are subject to manifest error review. Ladd,

350 So.3d 962. In its oral reasons for judgment (emphasis added), the trial court

found:

White, who was the director of nursing, acted on behalf of Lake

Charles Care Center when she instructed Tangela [Matthews] to,

quote/unquote, “fix” resident 192’s medical records. . . .the term “fix”

meant falsifying patient 192’s records to show that she received the

ulcer before she was a resident at Lake Charles Care Center.

The evidence shows that Defendant devised a plan and this plan

was to avoid detection by the Louisiana Department of Health. . .

It is evident that White acted on Defendant’s behalf and not just

her own. She acted for and as an agent and for the benefit of Lake

Charles Care [Center].

The Defendant was advised against its illegal scheme when

[Matthews] told White that the Plaintiff, Ms. Sonnier, insisted that she

not falsify the note.

Furthermore, Ms. Sonnier told White directly that falsifying

192’s medical records was unlawful and dishonest. Specifically, she

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cautioned Ms. White herself not to violate the law of licensing protocol.

Defendant’s action was obvious[ly] a violation of state law, including

but not limited to, forgery or attempted forger[y] under Louisiana

Revised Statute Article 14:72, as well as abuse and neglect of adults

under Louisiana Revised Statute 403.2, and unfair trade practices,

amongst others.

As a result of White’s illegal demands, Ms. Sonnier refused to

participate before and after she spoke to White. Ms. Sonnier could not

have reported White’s plan even if she wanted to. According to her

testimony, she couldn’t have failed to report it, because she had already

reported it to White. She could have – she didn’t have an opportunity.

It is no coincidence that Defendant terminated Ms. Sonnier the

next full workday after the State completed its inspection. Clearly, her

only mistake, Ms. Sonnier’s was her refusal to cooperate with this

unlawful, illegal scheme.

...

Defendant tried to deceive the Department of Health, and that did

not work. Defendant tried to deceive Ms. Sonnier, and that did not work.

Defendant will certainly not deceive this Court.

Testimony at the February 1, 2022 hearing

Danella Sonnier

Sonnier, who was forty-three years old at the time of trial, testified that she

worked at LCCC originally from October 2003 through March 2009 in various

nursing positions. She resumed working at LCCC in November 2009, and worked

there until May 30, 2016, when she was terminated. Regarding Patient 192, Sonnier

testified that Matthews was Patient 192’s treatment nurse. Sonnier said that DHH

began its survey on May 23, 2016, and that five surveyors from the state conducted

the audit. Sonnier said she was questioned by a state surveyor regarding the absence

of heel protectors for the prevention of pressure sores on Patient 192.

Sonnier then recalled being in her office with other employees of LCCC,

including White, when Matthews entered the room and began explaining the

situation relating to Patient 192. Sonnier said that White told Matthews “she needed

to fix it.” According to Sonnier, this event occurred a few weeks prior to the arrival

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of the DHH auditors. Sonnier said that during the week of the survey, Matthews

came into her office and said that it had been brought to her attention that the dates

in Patient 192’s record had discrepancies relating to when the pressure sore on

Patient 192’s heel developed. Sonnier said that Matthews reported that White told

her to “fix the record” to show that the patient had been admitted with a pressure

ulcer. Matthews did not feel comfortable leaving an “amended note” in the patient’s

record because White had never replaced the note as she said she would. This

resulted in conflicting dates because the admission assessment that was in Patient

192’s records still showed that she did not have a pressure sore upon arrival on April

25, 2016, whereas the nurse’s notes showed a wound listed on the April 25, 2016,

and there was also a note that showed that the wound developed on April 28, 2016.

Sonnier testified that she told Matthews:

And so what I told [Matthews] was, I understand that [White] is

our boss. She is the DON. [White] is our supervisor. However, just

like you worked for a license, she worked for a license. We all had to

work through school to get a license. And so her license is no more

important than your own. If she told you that was going to falsify the

document or she was going to change it and she didn’t then she’s pretty

much leaving you out here by yourself to have this false record placed

into this resident’s charge. I personally would not leave anything like

that because the DON who told me that she would have supported me

acutally had not. I’m going to leave that totally up to you at the end of

the day [the] State could very well find this false document and reach

out to the Louisiana Department of Practical Nurse Examiners to have

your license reviewed.

Sonnier said that she subsequently had a conversation with White during

DHH’s survey after White had been inquiring of the employees where the note

indicating that Patient 192 was admitted with the wound was, and Sonnier said:

And what I told her was, it was not right to do that. It wasn’t going to

make a difference at the end of the day. The resident had the decubitis,

they saw that there was multiple issues with the resident, from not

having the preventative measures to being treated with a medication

that she was allergic to, so there was no point.

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Sonnier then testified that at the end of the survey on Thursday, May 26, Eric

Whalen, the chief operating officer, said that they were to have the day off on Friday,

May 27, 2016, because everyone had worked really hard. On Monday, May 30,

2016, Sonnier was called to the DON’s office with White and Scott Stewart, the

administrator, and she was let go. Sonnier requested that she be demoted instead but

was told her “services were no longer needed.” She said she had just been promoted

to ADON in January 2016. Sonnier then described the financial hardship she

endured following the termination, such as having her car repossessed and missing

mortgage payments.

Sonnier was then shown medical records received from LCCC subsequent to

the filing of the lawsuit indicating that on April 28, 2016, a pressure ulcer the size

of a lemon was noted next to a line describing “onset date” and a check mark next

to a line stating, “facility acquired.” Sonnier was then shown a 1032 wound

assessment record dated April 25, 2016, noting the pressure sore the size of a lemon

with various notes about who was contacted and the treatment plan. The 1032 record

was unsigned. Sonnier said the document was incorrect because Patient 192 was not

diagnosed until April 28, 2016, and it was documented on her admission assessment

that she had no wounds on April 25, 2016. Sonnier was further shown a treatment

record indicating that Betadine was to be applied to the deep tissue injury to the left

heel with the date of 4/28/16 but that the number five had been written over the eight.

Sonnier was questioned on cross-examination if she reported the discrepancy

to the compliance officer as the employee handbook states, but she said she did not

know who that was. However, she did report it to White, the DON. She was

questioned (emphasis added):

Q. What did you report to her?

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A. So what we discussed was the document in question that she was

asking [Matthews] to fabricate and me telling her that we shouldn’t

have even made the document, because it wouldn’t have done any good.

It wouldn’t have made any difference as it related to patient care,

citations, or anything of that sort.

Q. When did you have that conversation?

A. During the week of survey. After it was brought to my attention by

Ms. Matthews.

Q. Here’s--Here’s my confusion. If it’s a record keeping issue you get

a tag, correct?

A. Correct.

Q. If it is a failure to timely put in place a treatment plan you get a tag,

correct?

A. Yes.

Q. Under either of those scenarios is the result an in-service training

session?

A. It depends on your plan of action.

Q. Okay.

A. But that same justification is what I was explaining to Ms. Matthews

when she was asking Ms.—I’m sorry, it’s the same thing that I was

explaining to Ms. White, that it didn’t matter if the document was there

or not. So that was a conversation that I had with her as well. It would

have still have been a citation. Because essentially the resident still had

some deficiency in care. If you acutally look at the 2567 you see

notation where the surveyor acutally documented herself that she spoke

with S-1 LPNADON, which was myself, in regards to her not having

heel protectors on in the room. So we still would have gotten a citation

for negligent care.

Q. In your experience if a nurse believes that there’s an error in a

resident’s record is there a responsibility to try to correct that error?

A. Yes, and there’s a way to do that as well. So you wouldn’t wright

[sic] over a number. You would acutally draw a line through whatever

the error is, write the word “void” next to it, and then initials so that the

individuals would know if something was written in error. That’s the

proper way to write it. That’s how we are taught in school.

Later she was asked:

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Q. So if you believe that there was improper conduct going on, why

not report that to Scott Stewart or Eric Whalen?

A. So to be honest –

Q. Please.

A. –during the – and I’m going to say, for lack of a better term, during

the [White] and Scott Stewart era, [White] and Scott had a very close

work relationship. And so for me to report that my supervisor who was

in a close relationship, work relationship, with her supervisor, Scott

Stewart, would put me in a situation to where I could possibly be

terminated. So if I tell Scott then he would tell [White], I would be

wrote up or terminated. And as you can see in the records, I had not

had any disciplinary action since 2011. It had been five years. So there

was no telling him.

Mr. Eric, sometimes he was there, sometimes he was not. But

most times when he was there he spent most of his time in Scott’s office.

So just the fact of being afraid of even mentioning anything to Scott, I

for sure was not going to mention anything to Scott in front of Eric.

There was no conversation that was unheard in the facility. Everybody

knew almost everything, except for the reason why Danella was

terminated. That was the only thing in Lake Charles Care Center that

stayed hush. But everything else was open knowledge for of the

witnesses that are in here today.

Q. Whether I agree or disagree with what you just said, let me ask you

this question, why not notify the survey team of your complaint?

A. No.

Q. Why not put – go ahead, I’m sorry.

A. No, you go ahead. I’ll let you finish. I apologize, I cut you off.

Q. If you truly believed that there was improper conduct going on why

not put that in writing to the Department of Health, to the Louisiana

Workforce Commission, to the Attorney General’s Office, to somebody

if you felt like you couldn’t go to [White]?

A. How do you prove it? You know? In order for us to be able to get

access to those documents, I mean, we would have had to – or I would

have had to sneak around to get access to them, that’s number one.

Number two, I had been in the nursing home industry off and on

since ’98. You did not volunteer and you still to this day do not

volunteer extra information to a State Surveyor. It is frowned upon in

the facility. You will be fired. And as a direct example of that

awareness, Tana White and Scott Stewart on June 5th, after my

termination, made sure to mention to the staff, staff who are also in

14

this room now, that you are not friends with the State. You do not have

a casual relationship with the State. You do not discuss anything with

the State. That was a directive given by our supervisors. You don’t

tell the State anything other than the basics of what they ask you for.

So no, I couldn’t just tell the auditors that [White] was trying to

coerce [Matthews] to falsify documentation.

Q. So if [Matthews] admits that she’s the person that made the mistake

and she took it on her own to correct the mistake, you’re saying she’s

lying?

A. I don’t believe [Matthews] said that. I believe that in regards, as I

think about it, in regards to some of that deposition, what we did

discuss was the timeline of resident events that was located in my

personnel file, which was definitely out of sorts, and her saying she

didn’t recall writing it or why it was written.

Now as far as making an error or making a mistake, I don’t

remember that. But I do know that when she and I talked in my office

that day she verbalized that [White] had asked her to change the

document and that [White] would also supplement the patient’s record

with a falsified document. That was not the word she used, “falsified,”

but the description, yes, was a falsified document.

Q. So if there’s 13 pressure sores –

A. In the facility, yeah.

Q. Okay. Why would people put their licenses at risk to cover up one

of 13? That makes – that does not make logical sense to me.

A. It doesn’t. It does not.

And I will say this, that it is not uncommon practice for a

supervisor, especially a director of nursing, it has not been uncommon

practice for her to ask people to alter documentation, especially in

regards to Ms. White. That is not uncommon. She has asked people

to do that before, whether it was related to pressure areas or people

passing away, it – she has.

So no, she – she would never openly admit to that. None of us

would. It would actually put us at risk of jeopardizing our own licenses.

But yes, we have been asked at different times to change documents by

supervisors. That was not uncommon practice.

15

Margentina Carter

Carter testified that she was employed at LCCC from 1998 through 2019 and

was a case manager at the time of the incident in question. Carter was questioned

about the record keeping regarding Patient 192:

Q. …during the survey did you have a conversation with the DON, the

director of nursing, Tana White, concerning the patient 192 [?]

A. Yes.

Q. When did that conversation take place?

A. The one I can remember on 192 was she came in my office and she

asked me about my care plan. She told me I had my dates wrong and I

had to – I needed to change it or review it. And when I looked at it, it

was because I had did an addendum on it saying . . . – Ms. 192 had

developed an ulcer on her heel on 4/28.

Q. And what was – what does it matter with that date?

A. She wanted – she actually was saying that it happened on 4/25, she

came in with it. And I told her, no, I got the orders – because I –

everytime we come in we pick up all the doctor’s orders, we look

through the nurse’s notes to see if there’s any changes on our skilled

residents. Nothing showed up of her having a wound until 4/28.

Q. So did you believe that your 4/28 date was accurate?

A. Yes.

Q. But Ms. – the DON, Ms. White, stated –

A. Ms. [White] –

Q. – nope, it’s not accurate?

A. Yes. She said that I had it wrong. I needed to change it to 4/25.

And I told her as far as the documentation goes, and because Ms. Carlin,

which was the nurse, she’s very meticulous in her assessments, she did

not see any ulcer on her heel, she did not note it. So I – I couldn’t – I

wasn’t changing my care plan.

Q. And you told her that?

A. Yeah.

16

Carter then recounted a time in a conference room with Mickey Foster, who

called the nurse, Ms. Carlin, and asked her to come in and change the date on her

records to reflect that there was a pressure sore on April 25, the date the patient was

admitted. However, Carlin appeared to have declined because Carter heard Foster

saying, “So you’re not coming up here? You’re not changing that?” Carter also

testified that Matthews asked her what to do about changing the date, but Carter told

her to ask Sonnier. Carter testified that changing the date would have conflicted

with her paperwork and thrown everything off. Carter noted on cross-examination

that she was Sonnier’s cousin.

Tangela Matthews

Tangela Matthews testified that she recalled the conversation she had with

Carter and recalled telling her that she was concerned about writing the note that

White had asked her to, which would be submitted to the DHH surveyors. She

testified she talked to both Carter and Sonnier about this situation. However, she

stated that she erroneously put the 26th when she should have put the 28th. She was

asked about the 1022 document with the “5” written over the “8” but denied being

the person who wrote it. She was asked:

Q. Did Ms. White ever, during the survey – or maybe even before the

survey, talk to you about changing dates on documents so that the

surveyors would decide that the ulcer was on patient 192 heel on the

date that she was admitted into the facility?

A. Yes.

Q. She did suggest to you that you change dates on documents?

A. We had a conversation about whether the wound occurred on the

date of admission or the date that was in the record, yes.

Q. And didn’t she instruct you to change some documents so that it

would appear to the surveyors that the ulcer was on the left heel on 4/25.

A. I was asked to fix it.

17

Q. Fix it. And fix it means change the dates?

A. Correct it, fix it.

Q. Yeah. And that’s what Ms. White told you to do.

A. Yes.

Q. All right. Now, you were new on the job right?

A. Correct.

Q. And she’s the top boss out there at that time.

A. Yes.

Q. So the top boss was telling you to change dates and you agreed to

do that?

A. No.

Q. You didn’t?

A. No.

Matthews went on to state that she mistakenly wrote “28” when she should

have written “26.” She admitted duplicating the 4/28 note and dating it 4/26. She

testified:

Q. All right. And so it was just a mistake, inadvertent mistake, that

caused you to duplicate what you had already documented as happening

on 4/28 on this noted [sic] dated 4/26?

A. Correct.

Q. That’s your testimony?

A. Correct.

Matthews continued to testify that White asked her to “fix” the date, or

“change” it, but it was due to her own error. Matthews stated she removed the record

dated 4/26 from the file. When asked why she removed it, she testified, “Because

the discrepancies in the date from the physician order to the beginning of treatment

and the nurse’s record.” She reviewed the document dated 4/28 that she filled out,

18

then reviewed another document dated 4/25 that she also filled out but did not sign,

and finally said she mistakenly wrote 4/26 on a document. Matthews essentially

testified that she made many dating “mistakes.” However, she ultimately concluded

that the 4/28 note was correct, that she had written a note dated 4/26, and:

Q. You then became aware that a survey team might catch the

difference between those two dates.

A. Correct.

Q. That was a concern of yours and it was a concern of Tana White’s,

correct?

A. Correct.

Q. All right. So did you not, as you said in your deposition, you took

it on your own to fix it by removing the April 26th note, correct?

A. Correct.

Q. Somehow that note ended up either in your office or somebody

else’s office during the survey of May 23 through May 26.

A. Correct.

Q. Tana White asked you, where’s the note?

A. Yes.

Q. You retrieved the note from an office and I think you put it in your

pocket, correct?

A. Yes.

Q. So then there’s a conversation that goes on between you and [White]

and maybe [Foster’s] there too, I don’t know.

A. Maybe.

Q. But what to do with this note in your pocket.

A. Right.

Q. And the conclusion was, if you drop it back in the chart now that

ain’t going to look good to the survey team.

A. Correct.

19

She then testified that she thew away the note.

Tana White

White testified she was the director of nursing at the time and typically was in

charge of 150 patients and 100 or more employees. She was asked if she told anyone

to alter Patient 192’s records, to which she responded, “No, not alter in a negative

manner.” She admitted there was a discussion about making sure that Patient 192’s

chart was “correct.” White had no recollection of anything said or done during the

meeting relating to Sonnier’s termination.

Analysis

We now turn to an analysis of the four prongs required of the Whistleblower

statute.

1) Violation of the law that is an employer workplace act or practice: Forgery

LCCC focuses the majority of its brief on the firing itself as being the illegal

act alleged by Sonnier. LCCC goes into great detail describing the timing of a

whistleblower claim and stating that the firing itself cannot be the alleged violation

of law.1 Sonnier’s initial petition stated the claim as:

21.

Defendant terminated Plaintiff in retaliation for Plaintiff having

instructed an employee not to alter a medical record in a way which

would result in the Department of Health and Hospitals not discovering

the deficient record.

22.

Defendant terminated Plaintiff because Defendant’s agents, Ms.

White and Mr. Steward, believed that Plaintiff’s cooperation with the

Department’s agents who conducted the inspection/audit assisted the

Department’s agents in discovery of deficiencies for which Defendant

was cited.

23.

1

The issue of the firing as a “violation of law” under LUTPA that would satisfy the

Whistleblower Act requirements will be discussed below.

20

The termination of Plaintiff was wrongful, illegal, and in

violation of State and Federal laws, including La.R.S. 23:967 [The

Whistleblower Act] and LA.R.S. 40:2009.17.[2]

In her first supplemental and amended petition for damages, Sonnier added

that White and Stewart were authorized agents of LCCC and the following:

8.

By amending Paragraph 13 to read:

“During the week long inspection/audit Plaintiff was approached

by a staff LPN who explained that she (the LPN) had been instructed

by the Director of Nursing, Ms. White, to write a false admission report

in regard to a patient (identified in the State audit as patient 192), and

to place the false report in patient 192’s medical records. The Director

of Nursing instructed the LPN to write the false report to ‘cover-up’ the

fact patient 192 developed a pressure ulcer on her left heel while patient

192 was under the care of the facility.”

9.

By amending Paragraph 14 to read:

“The LPN explained to Plaintiff her concern resulting from

having written a false medical report and placing it in patient’s medical

records that would be reviewed by Department auditors.”

10.

By amending Paragraph 15 to read:

“In response to LPN’s expressed concerns, Plaintiff informed the

LPN that she (Plaintiff) would not submit the false medical report to

the Department auditors, and informed the LPN that she (the LPN)

could lose her LPN license if she submitted the false report to

Department auditors.”

11.

By amending Paragraph 16 to read:

2

La.R.S. 40:2009.17 addresses retaliation by a health care provider:

No discriminatory or retaliatory action shall be taken by any health care

provider or government agency against any person or client by whom or for whom

any communication was made to the department or unit, provided the

communication is made in good faith for the purpose of aiding the office or unit to

carry out its responsibilities. Any person who knowingly or willfully violates the

provisions of this Section shall be guilty of a misdemeanor and upon conviction

punished by a fine of not less than one hundred dollars nor more than five hundred

dollars.

21

“After receiving Plaintiff’s opinion/advice, the LPN removed the

false report from patient 192’s medical records before the medical

record of patient 192 were [sic] submitted to a Department Auditor for

review.”

12.

By amending Paragraph 17 to read:

“Because the false report was removed from the medical records

of patient 192 before the records were submitted to a department

auditor, the Department correctly cited Defendant for having allowed

a pressure ulcer to have developed on 192’s left heel while the patient

was under the care of the facility.”

13.

By amending Paragraph 20 to read:

“Plaintiff met with Administrator Scott Stewart and Director of

Nursing Tana White, who were acting as agents for Defendant, who

informed Plaintiff that her services were no longer needed and that she

was terminated from employment with Defendant. Plaintiff was not

given a reason why her services were no longer needed nor why she

was terminated.”

14.

By amending Paragraph 21 to read:

“Defendant terminated Plaintiff because Director of Nursing

White and Administrator Stewart believed that Plaintiff had

advised/instructed/encouraged the LPN to remove the false medical

report from patient 192’s records and/or because Ms. White and Mr.

Stewart believed that Plaintiff had actually removed the false medical

report from patient 192’s medical records.”

15.

By amending Paragraph 23 to read:

“The termination of Plaintiff was wrongful, illegal, and in

violation of State and Federal laws, including but not limited to La.R.S.

23:967, La.R.S. 40:2009.17, La.R.S. 51:1401 et seq,[ 3 ] La.C.C. art

3

La.R.S. 51:1401 et seq. is the Louisiana Unfair Trade Practices and Consumer Protection

law.

22

1759[4] and 2024[5], a violation of the Louisiana ‘Abuse of Rights

Doctrine’, Louisiana Administrative Code Title 46 Part XLIX §

1105A.2.a.i. and c.iv.,[6]and Louisiana Administrative Code Title 46

Part XLVII § 306.T.8.i[7]”

The trial court relied on “forgery or attempted forger[y] under Louisiana

Revised Statute Article 14:72, as well as abuse and neglect of adults under Louisiana

Revised Statute 403.2,” although neither of these is mentioned in Sonnier’s petitions

as the alleged violations of law. Nevertheless, Louisiana is a fact pleading state and

Sonnier does assert facts that could be deemed a forgery, a violation of law.

Louisiana law defines forgery in La.R.S. 14:72 as:

A. It shall be unlawful to forge, with intent to defraud, any signature to,

or any part of, any writing purporting to have legal efficacy.

B. Issuing, transferring, or possessing with intent to defraud, a forged

writing, known by the offender to be a forged writing, shall also

constitute a violation of the provisions of this Section.

C. For purposes of this Section:

(1) “Forge” means the following:

(a) To alter, make, complete, execute, or authenticate any writing so

that it purports:

(i) To be the act of another who did not authorize that

act;

(ii) To have been executed at a time or place or in a

numbered sequence other than was in fact the case;

or

(iii) To be a copy of an original when no such original

existed.

4

La.Civ.Code art. 1759 relates to the performance of obligation in good faith and states:

“Good faith shall govern the conduct of the obligor and the obligee in whatever pertains to the

obligation.”

5

La.Civ.Code art. 2024 states that “A contract of unspecified duration may be terminated

at the will of either party by giving notice, reasonable in time and form, to the other party.”

6

These titles relate to rules governing Nursing Facility Administrators such as hearings

relating to licensure when the Administrator has failed to act in accordance with the rules.

7

This section relates to adjudication proceedings for disciplinary actions against practical

and registered nurses.

23

(b) To issue, transfer, register the transfer of, pass, publish, or otherwise

utter a writing that is forged in accordance with the meaning of

Subparagraph (1)(a).

(c) To possess a writing that is forged within the meaning of

Subparagraph (1)(a).

(2) “Writing” means the following:

(a) Printing or any other method of recording information;

(b) Money, coins, tokens, stamps, seals, credit cards, badges, and

trademarks; and

(c) Symbols of value, right, privilege, or identification.

D. Whoever commits the crime of forgery shall be fined not more than

five thousand dollars, or imprisoned, with or without hard labor, for not

more than ten years, or both.

Using a manifest error standard, we find that the trial court did not err in

concluding that Matthews forged a document at the behest of White. We note,

though, that the forged document was removed. In addition to being an actual

violation of state law, the violation of state law must be a workplace act or practice

that can be attributed to the employer rather than a rogue co-employee. Ladd, 350

So.3d 962. The act or practice must be condoned by the employer, such that it can

be attributed to the employer. Id. The LWA targets “serious employer conduct that

violates the law.” Causey v. Winn Dixie Logistics, Inc., 15-813, p.4 (La.App. 1 Cir.

12/23/15), 186 So.3d 185, 187.

We find the trial court did not err in concluding that the forging of patient

records was a workplace act or practice attributable to LCCC. Matthews testified

that White asked her to alter records; Carter testified that Foster asked Carlin, the

nurse, to come in and change the date on her records to reflect that Patient 192 had

a pressure sore on April 25, but she declined. Carter also said that Matthews asked

her what to do about changing the date, but she referred Matthews to Sonnier.

24

Sonnier herself testified that it was commonplace for White to request that other

people change records. The trial court obviously found this testimony credible, and

we find no manifest error in its finding. Systemic falsification of patient medical

records in order to pass DHH inspections is serious misconduct that violates the law

and jeopardizes the health of Louisiana’s most fragile residents. Accordingly, the

trial court did not err in finding a workplace practice that violated the law, i.e., the

forging of patient records to avoid negative treatment by DHH.

2) Did Sonnier advise employer of the crime?

LCCC argues that this prong was not met because Sonnier did not notify

LCCC of the violation. It is true that in its opposition to LCCC’s MSJ, Sonnier

stated:

In regard to the issue of notification to her employer, Sonnier will

prove that certain factual circumstances of this case caused it to be

impossible for her to advise her employer of the illegal scheme. This is

so because White kept secret the scheme and the implementation of the

scheme. Sonnier was not aware of its existence until Matthews told

Sonnier, on the same day (May 25, 2016) that the Department was

requesting patients 192’s file[.]

....

Another material factual finding that may cause the Court to

determine the failure to notify is of no consequence to the validity of

Sonnier’s Whistleblower claim is that “notification” to White was not

only impossible, notification would have served no purpose. This is so

because White was the architect of the illegal plan. She (White) knew

about her plan from the very day it was implemented. Thus it was

impossible for Sonnier to advise White of an illegal work practice that

White devised and implemented.

Sonnier testified that she did not report to Stewart because of the “work

relationship” between White and Stewart, stating that she would be fired if she told

Stewart. She testified that she did not report to Whalen because he was always in

Stewart’s office. The trial court found that the notice requirement was satisfied,

although its reasoning is unclear. Regardless, we find that notifying White, even

25

though White was the person instigating the violation of law, sufficed. Sonnier did,

in fact, approach White and tell her that what she was doing was wrong and

jeopardized Matthews’ license if DHH became aware of the falsified record.

Sonnier then explained to White that it did not matter anyway because LCCC would

be cited for a violation regardless. The statute requires that the whistleblower notify

the employer of the act or practice that can be attributed to the employer. La.R.S.

23:967. If the act or practice is of such a significant nature that it can be attributed

to the employer, a high-level manager of hundreds of employees in close contact

with the top two persons of the organization qualifies as a person susceptible of being

given notice. The trial court did not err in finding that the notification prong has

been satisfied.

3) Did Sonnier Disclose, Testify, Object, or Refuse to Participate?

On this issue, we find the law varies on what is actually required. A classic

whistleblower case typically involves disclosure or threats to disclose to some

outside agency or the press. LCCC indeed relies on the disclosure language used in

many cases to argue that this prong was not satisfied. It is undisputed that Sonnier

was never asked to participate and, therefore, could not refuse to, nor did she ever

threaten to disclose. Moreover, it was clear from the record that Sonnier would have

never disclosed to DHH as she testified that it was an industry practice to only

answer questions asked by DHH employees and because there would not have been

any way to prove the claim she was making.

However, a plain reading of the statute and some jurisprudence indicates that

“objecting” is enough to satisfy the “disclosure” portion of the statute. See La.R.S.

23:967(3), Kelly (an unpublished opinion). Until the legislature clarifies otherwise,

this prong of the statute only requires that Sonnier “objected” to the behavior that

violated state law. On this count, we find no manifest error in the trial court’s finding

26

that Sonnier objected by telling Matthews not to do it and by telling White that it

was wrong.

4) Did LCCC retaliate?

We find no error in the trial court’s finding that Sonnier was fired in retaliation

for objecting to White’s requests. This is evident from the timing of her termination

following Whalen giving everyone the day off for doing such a good job, and the

deposition testimony of Whalen. Whalen, in deposition testimony, when asked

about his conversation with White and Stewart relating to Sonnier’s termination:

What I can recall, the information that was provided to me, was

that during a State survey, that Danella had removed a wound care

report that had been completed by Tana White, the RN, on a resident’s

wound that Danella did not agree with. And she went on her own and

pulled the documentation out of the chart, which showed that the

facility did not have proper documentation for this wound.

And based on that information, they told me that she interfered

in a State survey process. That was the information they gave me, which

led to her termination.

This explanation is simply unsupported by the record and was untruthful

testimony by White, Stewart, or both of them. Accordingly, we find the fourth prong

of the statute was satisfied.

Even from a cold record, Matthews’ and White’s lack of credibility was

painfully obvious. We have no doubt that the events transpired just as Sonnier

testified. We find no manifest error in the trial court’s finding that Sonnier was a

protected whistleblower under the statute. Sonnier certainly objected to the behavior,

notified LCCC of this particular act of a violation of state law amounting to forgery,

and was retaliated against for doing so. Assignment of error two is without merit.

Abuse of Rights

LCCC argues there can be no abuse of rights because of employment at will.

We address this argument as it bears on issues relating to damages. The doctrine of

27

at-will employment has had a strong foothold in Louisiana law for over 200 years.

La.Civ.Code art. 2747.8 Simply, an employer can terminate an employee for any

reason even if it is inaccurate, unfair, or unreasonable. Huang v. La. State Bd. of

Trustees, 99-2805 (La.App 1 Cir. 12/22/00), 781 So.2d 1. The only exceptions are

for reasons such as race, sex, or religious belief or otherwise protected civil rights.

Fletcher v. Wendelta, Inc., 43,866 (La.App. 2 Cir. 1/14/09), 999 So.2d 1223, writ

denied, 09-387 (La. 4/13/09), 5 So.3d 164. There are no broad policy considerations

creating exceptions to employment at will. Hayes v. Univ. Health Shreveport, LLC,

21-1601 (La. 1/7/22), 332 So.3d 1163.

In Hayes, the Louisiana Supreme Court recently addressed the employment-

at-will doctrine in relation to an employer’s requirement that its employees be

vaccinated against COVID-19 or face disciplinary action:

“The employer-employee relationship is a contractual

relationship.” Quebedeaux v. Dow Chem. Co., 01-2297, p. 4 (La.

6/21/02), 820 So.2d 542, 545. “As such, an employer and employee

may negotiate the terms of an employment contract and agree to any

terms not prohibited by law or public policy.” Id., 01-2297 at 4-5, 820

So.2d at 545. “When the employer and employee are silent on the terms

of the employment contract, the [Louisiana Civil Code] provides the

default rule of employment-at-will.” Id., 01-2297 at 5, 820 So.2d at

545. “This default rule is contained in LSA-C.C. art. 2747,” which has

been in the Civil Code since 1808–over 213 years. This code article

sets forth the fundamental framework for Louisiana’s at-will

employment doctrine—which means that, generally, “an employer is at

liberty to dismiss an [at-will] employee at any time for any reason.”

See Quebedeaux, 01-2297 at 5, 820 So.2d at 545. Reciprocally, at-will

employees are at liberty to leave the employment to seek other

opportunities for any reason or no reason at any time.

However, an employer’s right to terminate an at-will employee

“is tempered by numerous federal and state laws which proscribe

certain reasons for dismissal of an at-will employee.” Quebedeaux, 01-

2297 at 5, 820 So.2d at 545. As long as the termination does not violate

any statutory or constitutional provisions, the employer is not liable for

wrongful termination. For example, laws prohibit discrimination

against anyone based on “race, sex or religious beliefs,” and protect

8

La.Civ.Code art. 2747 provides: “A man is at liberty to dismiss a hired servant attached

to his person or family, without assigning any reasons for so doing. The servant is also free to

depart without assigning any cause.”

28

employees from termination “for exercising certain statutory rights.”

See id., 01-2297 at 5, 820 So.2d at 545-46 & nn.8 & 9 (citing 42

U.S.C.A. § 2000e, et seq.; 42 U.S.C.A. § 1981; La. R.S. 23:301, et seq.;

La. R.S. 23:1361). “Aside from [these limited] federal and state

statutory exceptions, there are no broad policy considerations creating

exceptions to employment at will.” Id., 01-2297 at 5, 820 So.2d at 545-

46.9

Id. at 1168-69.

Terminating an at-will employee is virtually never an abuse of rights. For

example, in Walther v. National Tea Co., 848 F.2d 518 (5th Cir. 1988), the abuse of

rights doctrine was inapplicable where two at-will employees were terminated

shortly before the vesting of their pensions because the exercise of the legal right

(termination at will) benefitted the employer (not having to pay the employee’s

pensions). The first prong of the abuse of rights test requires a benefit to the

employer however it is prefaced by the phrase:

To cast a party “in damages for exercising a right legally conferred

upon him there must exist (1) no benefit to the person exercising the

legal right and (2) damage or injury to the person against whom the

legal right is asserted.” [Lambert v. Maryland Cas. Co., 403 So.2d 739,

757 (La.App. 4 Cir.1981), aff’d, 418 So.2d 553 (La.1982)]. If a party

has a “legitimate and serious interest” in the exercise of the right, then

the injured person cannot recover under a theory of abuse of rights.

Id. at 519.

The only time the abuse of rights doctrine has been utilized in an employment

at will case was an anomaly, as the supreme court itself has noted:

The Abuse of Rights doctrine is a civilian concept which is applied only

in limited circumstances because its application renders unenforceable

one’s otherwise judicially protected rights. In Morse v. J. Ray

McDermott & Co., 344 So.2d 1353 (La.1977), this court recognized the

Abuse of Rights doctrine. There, we held that an employer could not

defeat his obligation to pay an employee the remaining portions of the

9

Age discrimination, discrimination based on disability; La.R.S. 23:331 discriminating

against a veteran for taking time away from work to attend medically necessary appointments,

23:332 discriminating against an individual because of race, color, religion, sex, national origin,

or natural, protective, or cultural hairstyle (Definition of natural, protective, or cultural hairstyle-

shall include but is not limited to afros, dreadlocks, twists, locs, braids, cornrow braids, Bantu

knots, curls, and hair styled to protect hair texture or for cultural significance.); 22:352:

discriminating against those with sickle cell trait; 23:368 discrimination based on genetic traits.

29

employee’s compensation by terminating his employment without

cause. Since that case, neither this court nor the courts of appeal have

applied the doctrine.

The Abuse of Rights doctrine has been applied only when one of

the following conditions is met:

(1) if the predominant motive for it was to cause harm;

(2) if there was no serious or legitimate motive for refusing;

(3) if the exercise of the right to refuse is against moral rules,

good faith, or elementary fairness;

(4) if the right to refuse is exercised for a purpose other than that

for which it is granted.

Illinois Central Gulf Railroad Co. v. International Harvester Co., supra;

Cueto-Rua, Abuse of Rights, 35 La.L.Rev. 965 (1975).

Truschinger v. Pak, 513 So.2d 1151, 1154 (La.1987) (emphasis added).

In Massachusetts Mut. Life Ins. Co. v. Nails, 549 So.2d 826 (La.1989), the

supreme court found that the abuse of rights doctrine did not apply when an

insurance company dropped coverage of Nails, who was terminated from his

position at Exxon after being rendered a quadriplegic in a non-work-related accident.

The supreme court declined to apply the abuse of rights doctrine, noting that it would

take “legislative reform” rather than the “judicial restructuring of insurance policies”

to use the abuse of rights doctrine to abrogate the legitimate terms of an insurance

contract. Id. at 832. Similarly, the legislature will have to act before the

employment-at-will doctrine can be overcome by an abuse of rights claim anytime

an employee asserts a wrongful termination claim.

LCCC argues in brief:

Like the defendant in Walther [848 F.2d 518], Lake Charles Care

Center derived a benefit by exercising its legal right to discharge

Sonnier, an at-will employee. Namely, by discharging Sonnier, Lake

Charles Care Center avoided the liability inherent in employing

workers, such as the payment of wages and benefits. Because Lake

Charles Care Center derived a benefit from exercising its right, it is not

liable under the abuse-of-rights doctrine. In any event, Lake Chares

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Care Center has a “legitimate and serious interest” in the ability to

discharge at-will employees at anytime for any reason, as enshrined in

La.Civ.Code art. 2724.

Finally, there are broad public policy concerns should this Court

sanction the trial court’s unprecedented judgment. A ruling that an

employer can be liable for terminating an at-will employee cuts both

ways. Any time an employee chooses to end their employment, they

could potentially be subject to a lawsuit by the employer for abuse of

their right to depart. Such a result is untenable, unduly restricts

employee’s freedom to choose their employment, and conflicts with the

clear language of La.Civ.Code art. 2747.

The abuse of rights doctrine cannot vitiate the employer’s right to terminate

an at-will employee. While we find that Sonnier was protected under the

Whistleblower Statute, the trial court legally erred in finding that she had a valid

abuse of rights claim. Accordingly, we reverse the trial court’s finding that Sonnier’s

termination was an abuse of rights.

LUTPA

For the same reasons noted above, we address this argument because of its

relationship to the damages awarded Sonnier. Louisiana’s Unfair Trade Practices

and Consumer Protection Law declares unlawful “[u]nfair methods of competition

and unfair or deceptive acts or practices in the conduct of any trade or commerce.”

La.R.S. 51:1405(A). In brief, Sonnier cites Cheramie Servs., Inc. v. Shell Deepwater

Prod. Inc., 09-1633 (La. 4/23/10), 35 So.3d 1053, for the proposition that “any

person, natural or juridical, who suffered an ascertainable loss resulting from

another’s use of an unfair method of competition and unfair or deceptive acts or

practices in the conduct of any trade or business.” However, Sonnier does not

elaborate further. It is true that Cheramie held that “persons who are neither business

competitors nor consumers can bring an action for damages pursuant to the Unfair

Trade Practices and Consumer Protection Law.” Id. at 1054. Cheramie went on to

state:

31

The definition portion of LUTPA is found in LSA-R.S. 51:1402

which provides, in pertinent part:

(1) “Consumer” means any person who uses, purchases,

or leases goods or services.

....

(3) “Consumer transaction” means any transaction

involving trade or commerce to a natural person, the

subject of which transaction is primarily intended for

personal, family, or household use.

....

(8) “Person” means a natural person, corporation, trust,

partnership, incorporated or unincorporated association,

and any other legal entity.

(9) “Trade” or “commerce” means the advertising,

offering for sale, sale, or distribution of any services and

any property, corporeal or incorporeal, immovable or

movable, and any other article, commodity, or thing of

value wherever situated, and includes any trade or

commerce directly or indirectly affecting the people of the

state.

An examination of these sections of LUTPA reveals that the

legislation contains no language that would clearly and expressly bar a

“person” (such as the individual and the corporation that are the

plaintiffs herein) from bringing an action for unfair trade practices. To

the contrary, LUTPA grants a right of action to any person, natural or

juridical, who suffers an ascertainable loss as a result of another

person’s use of unfair methods of competition and unfair or deceptive

acts or practices in the conduct of any trade or commerce. Although

business consumers and competitors are included in the group afforded

this private right of action, they are not its exclusive members. As noted

in Capitol House Preservation Company, L.L.C. v. Perryman

Consultants, Inc., 98-1514, pp. 12-13 (La.App. 1 Cir. 12/10/98), 725

So.2d 523, 530, Louisiana courts have repeatedly held that there is no

such limitation in LUTPA.

An evaluation of the words of this statute leads to the conclusion

that, consistent with the definition and usage of the word “person,”

there is no such limitation on those who may assert a LUTPA cause of

action. Any such limitation that has found its way into the

jurisprudence resulted without proper analysis of the statute.

Id. at 1056-57 (emphasis added) (footnote omitted).

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Nursing home care is the sale of a service, specifically, to provide care to

infirm persons. Sonnier’s petition states the firing itself was a violation of LUTPA.

While White’s behavior was egregious and fraudulent, it does not obviate the general

rule that an at-will employee cannot have a LUTPA claim. The Whistleblower

Statute was the proper mechanism for asserting a wrongful termination; LUTPA is

not. If every at-will employee could pursue claims under LUTPA, the employment-

at-will doctrine would be significantly undermined.

In In re Anderson, 539 B.R. 277 (Bankr. W.D.La. 2015), Anderson claimed

she was wrongfully terminated in violation of LUTPA. The court held:

With respect to Anderson’s termination, the summary record

reflects that Anderson was a W-2 employee of the company. Plaintiffs

have not come forward with any evidence of an employment contract,

a company handbook, or any other document or policy that restricted

the company’s ability to terminate Anderson. As a result, Anderson

was an “at will” employee of AB Family, Inc. and her termination

cannot give rise to a claim under the Louisiana Unfair Trade Practice

Act. See La. Civil Code Art. 2747 (“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.”); see also Cheramie Services, Inc. v. Shell Deepwater

Production, Inc., 35 So.3d 1053, 1061 (La.2010) (exercising rights

under the “at will” employment doctrine does not give rise an unfair

trade practice claim). Accordingly, the court grants defendants’ motion

for summary judgment with respect to plaintiffs’ unfair trade practice

claims.

Id. at 289 (emphasis added).

The trial court legally erred in finding that Sonnier, an at-will employee, had

a LUTPA claim because terminating an at-will employee is not an unfair trade

practice. This legal error is reversed.

DAMAGES

Attorney Fees

The trial court awarded Sonnier $104,177.50 in attorney fees based on a post-

trial affidavit of her attorney setting forth the billable hours and expenses for

33

Sonnier’s case. LCCC argues that Sonnier provided no evidence at trial or in a post-

judgment rule regarding attorney fees. We disagree. The trial court was authorized

to award reasonable attorney fees under La.R.S. 23:967(B). As to attorney fees, the

trial court noted in its oral reasons:

Lastly, counsel for the Plaintiff attested by affidavit that

Plaintiff’s attorney’s fees and expenses total over a $100,000, 108,000

to be exact. Plaintiff also attached a complete description and

itemization of the tasks and the bills that he incurred over the course of

his representation. And accordingly, the Court awards attorney’s fees

in the amount of $108,000 – I’m sorry, $104,177.50[.]

We recently noted in Hooper v. La. Pigment Co., 19-816, pp. 46-47 (La.App. 3 Cir.

5/13/20), 298 So.3d 810, 835-36:

In Stanley v. Crowell & Owens, LLC, 15-395, pp. 3-

4 (La.App. 3 Cir. 10/7/15), 175 So.3d 1204, 1207-08, writ

denied, 15-2035 (La. 1/8/16), 184 So.3d 694, this court

reviewed the law regarding appellate review of an attorney

fee award:

This court reviews the trial court’s

award of attorney fees under the abuse of

discretion standard. Covington v. McNeese

State Univ., 12-2182 (La. 5/7/13), 118 So.3d

343. In Covington, the supreme court stated

that in applying that standard, “the role of the

reviewing court is not to determine what it

considers to be an appropriate award, but

rather it is to review the exercise of discretion

by the trier of fact.” Id. at 351. Still, we

review the trial court’s factual findings in

reaching the award at issue pursuant to the

manifest error/clearly wrong standard.

Stobart v. State, Dep’t of Trans. & Dev., 617

So.2d 880 (La.1993); Cottonport Bank v.

Keller Prop. Mgmt., LLC, 13-649 (La.App. 3

Cir. 12/11/13), 128 So.3d 668.

Additionally, the trial court has discretion in determining the

amount of an attorney fee based upon its own knowledge, the evidence,

and its observation of the case and the record. Custom-Bilt Cabinet &

Supply, Inc. v. Quality Built Cabinets, Inc., 32,441 (La.App. 2 Cir.

12/8/99), 748 So.2d 594. In fact, a court does not have to hear evidence

concerning the time spent or hourly rates charged in order to make an

award since the record will reflect much of the services rendered.

Burford v. Burford, 95-2318 (La.App. 1 Cir. 6/28/96), 677 So.2d 722.

34

When the nature and extent of the services of an attorney are shown by

the record, it is the duty of the court to bring to bear its knowledge of

the value of the services of counsel and to fix the value even in the

absence of expert testimony. Mitchell v. Turner, 588 So.2d 1305

(La.App. 2 Cir.1991).

The factors to be considered in determining the reasonableness

of an attorney fee award on appeal include:

(1) the ultimate result obtained; (2) the responsibility

incurred; (3) the importance of the litigation; (4)

amount of money involved; (5) extent and character of

the work performed; (6) legal knowledge, attainment,

and skill of the attorneys; (7) number of appearances

made; (8) intricacies of the facts involved; (9)

diligence and skill of counsel; and (10) the court’s own

knowledge.

State, Dep’t of Transp. & Dev. v. Williamson, 597 So.2d 439, 442

(La.1992).

Based on our review of the record and the affidavit of Sonnier’s attorney

setting forth his billable hours, we find no error in the trial court’s award of attorney

fees. Counsel obtained a favorable result in whistleblower litigation that rarely

succeeds. This assignment of error is without merit.

Legal Interest

“The court shall award legal interest in the judgment as prayed for or as

provided by law.” La.Code Civ.P. art. 1921. “Legal interest shall attach from date

of judicial demand, on all judgments, sounding in damages, ‘ex-delicto’, which may

be rendered by any of the courts.” La.R.S. 13:4203. Legal interest must be prayed

for unless the claim sounds in tort. Scruggs v. Minton Equip. Co., Inc., 98-987

(La.App. 3 Cir. 12/9/98), 722 So.2d 130. Sonnier prayed for legal interest in her

petition. However, contrary to LCCC’s claims, retaliatory firing for whistleblowing

is a tort; thus a prayer for relief was not necessary. See Overton v. Shell Oil Co., 05-

1001 (La.App. 4 Cir. 7/19/06), 937 So.2d 404, writ denied, 06-2093 (La. 11/3/06),

940 So.2d 674; Nolan v. Jefferson Parish Hosp. Serv. Dist. No. 2, 01-175, p.12

35

(La.App. 5 Cir. 6/27/01),790 So.2d 725, 733 (“[W]histle-blower” claims . . . are

delictual in nature.”); Sampson v. Wendy’s Mgmt., Inc., 593 So.2d 336 (La. 1992)

(retaliatory discharge for filing workers compensation claims is a tort). We note that

the LUTPA and abuse of rights claims cannot be the basis for any damages, as we

have found the trial court legally erred in its findings relating to those claims.

Accordingly, we affirm the trial court’s award of legal interest from the date of

judicial demand for Plainitff’s general and special damages, and legal interest from

the date of judgment on attorney fees and court costs is also affirmed.

General Damages

In Wainwright v. Fontenot, 00-492, p. 6 (La. 10/17/00), 774 So.2d 70, 74

(alteration in original), the standard to be used by an appellate court when reviewing

a quantum award was set forth by our supreme court:

The assessment of “quantum,” or the appropriate amount of

damages, by a trial judge or jury is a determination of fact, one entitled

to great deference on review. As such, “the role of an appellate court

in reviewing general damages is not to decide what it considers to be

an appropriate award, but rather to review the exercise of discretion by

the trier of fact.” Youn v. Maritime Overseas Corp., 623 So.2d 1257,

1260 (La.1993). Moreover,

before a Court of Appeal can disturb an award made

by a [factfinder,] the record must clearly reveal that the

trier of fact abused its discretion in making its award. Only

after making the finding that the record supports that the

lower court abused its much discretion can the appellate

court disturb the award, and then only to the extent of

lowering it (or raising it) to the highest (or lowest) point

which is reasonably within the discretion afforded that

court.

Coco v. Winston Indus., Inc., 341 So.2d 332, 334 (La.1977)

(internal citations omitted).

It is not our role to determine what we feel is an appropriate award. We can

only disturb the trier of fact’s determination if it abused its discretion. Youn, 623

36

So.2d 1257 (La. 1993). The trial court awarded Sonnier $214,000 in mental anguish

damages noting in its oral reasons for ruling:

The evidence shows that Ms. Sonnier suffered mental anguish,

extreme mental anguish, and lost wages because of her wrongful

termination and because of the Defendant’s violation under the statutes

as previously discussed.

Ms. Sonnier testified that she suffered mentally to the point that

she was prescribed antidepressants. Ms. Sonnier’s car was repossessed.

The state mistakenly denied her eligibility to government assistance

and she missed mortgage payments on her home. Despite her

termination from Lake Charles Care Center, her role as a mother could

not terminate. Ms. Sonnier was a single mother who had to provide for

the three children living in her household during such a tumultuous time

in her life. The mental anguish Ms. Sonnier suffered was evident in her

testimony, such as her peers having to provide meals for her and her

family and said mental anguish was still evident even up until the date

of trial and could be ongoing.

Although she regained financial stability some years later,

nothing can repair the anguish she still experiences and has experienced

in the past at the hands of the illegal scheme of Lake Charles Care

Center. Ms. Sonnier’s mental distress was evidenced by her grief, pain,

and tears expressed while testifying at trial over five years after the

event.

Therefore, the Court awards damages for mental anguish in the

amount of $214,000, which is $5,000 per month from the time she was

terminated until she found some employment; $3,500 per month from

the time she was underemployed until she became the Director of

Nursing at Rosewood; and $2,500 per month from the time she was at

Rosewood up until the date of trial. Total amount, $214,000.

Having reviewed all of the testimony and evidence, we cannot say that the

trial court manifestly erred in its award of $214,000 in general damages. It was in a

superior position to assess the mental anguish suffered by Sonnier, and we find the

award reasonable in light of the circumstances. Accordingly, this assignment of

error is without merit.

Special Damages

Special damages are those that may be calculated with some degree of

mathematical certainty and include claims for lost wages. Thibeaux v. Trotter, 04-

37

482 (La.App. 3 Cir. 9/29/04), 883 So.2d 1128. We review a trial court’s award of

lost wages using a manifest error standard of review. Id. The trial court, in its oral

reasons, stated:

As to lost wages, Ms. Sonnier struggled to find employment after

Defendant terminated her. Even when she found employment, they

offered only part-time positions that paid far less that what she made at

Lake Charles Care Center. Ms. Sonnier did not find employment that

was financially comparable to what she earned at Lake Charles Care

Center until November 2019, over three years later. Ms. Sonnier

testified that she calculated the amount of her lost wages by reviewing

her tax returns from 2016 to 2018. Therefore, the Court awards

damages for lost wages in the amount of $62,000.

LCCC argues Sonnier was only employed part-time following her discharge.

Sonnier testified that was the only work she could find. The trial court clearly found

Sonnier’s testimony credible regarding her attempts to find work and what type of

work was available to her following her wrongful termination. It deemed her method

of calculating her lost wages reasonable, and we find no error in its conclusions.

Finally, we note that the awards are supported even in the absence of the

LUTPA and abuse of rights claims. Accordingly, this assignment of error is without

merit.

CONCLUSION

The judgment of the trial court finding that the Plaintiff/Appellee, Danella

Taylor Sonnier, was entitled to whistleblower protection under La.R.S. 23:967, is

affirmed. The judgment of the trial court awarding her $458,727.01 is affirmed.

That portion of the judgment finding violations of LUTPA and an abuse of rights is

reversed. All costs of this appeal are assessed against the Defendant/Appellant,

Diversified Healthcare-Lake Charles, LLC, d/b/a Lake Charles Care Center.

AFFIRMED AS AMENDED.

38