
    Jean DAGENHARDT v. TERREBONNE PARISH SCHOOL BOARD.
    No. 92 CA 2308.
    Court of Appeal of Louisiana, First Circuit.
    May 20, 1994.
    
      David K. Nelson, Baton Rouge, for plain-tifi/appellant Jean Dagenhardt.
    Albert H. Hanemann, Jr., New Orleans, David W. Arceneaux, Houma, for defendant/appellee Terrebonne Parish School Bd.
    Before LOTTINGER, C.J., and EDWARDS, WATKINS, SHORTESS, CARTER, CRAIN, LeBLANC, FOIL, FOGG, PITCHER and PARRO, JJ.
   LeBLANC, Judge.

Plaintiff, Jean Dagenhardt, appeals a summary judgment in favor of defendant, Terre-bonne Parish School Board, arguing the trial court erred in finding the school board was not required by La.R.S. 17:1202 to continue paying her salary, minus a deduction for the actual cost of a substitute teacher, despite the fact that she had exhausted her accumulated sick leave and was denied additional sick leave. We affirm.

FACTS

The pertinent facts are not disputed. Jean Dagenhardt is a tenured teacher hired by defendant to teach at Houma Junior High School, pursuant to a contract for the 1990-91 school year. On November 14, 1990, Ms. Dagenhardt’s request for maternity leave under a Board policy allowing a teacher to use accumulated sick leave and extended sick leave, to begin April 2, 1991 and continue until August, 1991, was granted by the Board. However, due to complications from her pregnancy, Ms. Dagenhardt was absent from work from November 17, 1990 through the remainder of the 1990-91 school year.

Ms. Dagenhardt was paid her full salary until February 25, 1991, when her fifty-two and one-half days of accumulated sick leave was exhausted. Thereafter, the Board granted plaintiff extended sick leave, subject to a reduction in salary for the amount paid to a substitute teacher, from February 25, 1991, through March 28, 1991. Ms. Dagen-hardt’s request for additional sick leave was denied at a meeting of the Board held on April 18, 1991. Beginning March 28, 1991, Ms. Dagenhardt was not paid. On May 7, 1991, the Board adopted an across the board policy that no employees would be granted extended sick leave.

Ms. Dagenhardt filed this suit against defendant for declaratory judgment and for damages, claiming the Board’s actions violated the requirements of La.R.S. 17:1201 and 1202. Plaintiff and defendant filed cross-motions for summary judgment, with both parties agreeing that there were no material issues of fact before the court. Following a hearing, the trial court granted the defendant school board’s motion for summary judgment on the grounds that the Isschool board had authority under La.R.S. 17:1201 A(2) to deny plaintiffs request for extended sick leave. Plaintiff appealed.

ISSUE

The issue presented for review is whether La.R.S. 17:1201 and 17:1202 entitle a school teacher to unlimited sick leave, subject only to a reduction in salary for any actual amount paid to a substitute, or whether a parish school board has discretion to deny extended sick leave to a school teacher and discontinue payment of her salary if she has exhausted her accumulated sick leave.

DISCUSSION

La.R.S. 17:1201 provides, in pertinent part, as follows:

A. (1) Every member of the teaching staff employed by any parish or city school board of this state shall be entitled to and shall be allowed a minimum of ten days absence per school year because of personal illness or because of other emergencies, without loss of pay. Any portion of such sick leave not used in any year shall be accumulated to the credit of the member of the teaching staff without limitation. However, upon initial employment a member of the teaching staff employed by a school board shall not be allowed any such leave in a school year unless and until he reports for duty and actually performs work for the board during that school year at which time the ten days otherwise provided for in this Paragraph shall accrue.
(2) When a member of the teaching staff is absent for six or more consecutive days because of personal illness, he shall be required to present a certificate from a physician certifying such illness.... The parish and city school boards may grant additional sick leave, without loss of pay, or with such reduction of pay as they may establish and fix. (emphasis added)
La.R.S. 17:1202 provides, in pertinent part: Parish and city school boards are prohibited from deducting any amount whatsoever from a teacher’s salary, in case of absence, unless a substitute teacher was employed and actually served, during such teacher’s absence, and only such amount may be deducted as was actually paid to the substitute teacher.... Nothing contained in this Section shall be so construed as to authorize or permit any deduction from the pay of a teacher because of the employment or assignment of a substitute teacher during the minimum leave of absence period, without loss of pay, provided for, established and fixed in R.S. 17:1201. (emphasis added)

On appeal, Ms. Dagenhardt argues La.R.S. 17:1202 mandates school boards to continue paying a teacher’s salary, even after the teacher’s accumulated sick leave is exhausted, subject only to a reduction in salary for the actual cost of a substitute teacher. In effect, Ms. LPagenhardt takes the position that La.R.S. 17:1202 precludes school boards from denying extended sick leave to a teacher. She contends the language in La.R.S. 17:1201 stating that a school board “may grant additional leave, without loss of pay, or with such reductions as [it] may establish and fix”, means that a school board may grant a teacher additional sick leave with full pay or pay exceeding the statutory minimum provided by La.R.S. 17:1202, but may not make any greater reduction in salary than provided therein. According to plaintiff, the discretion granted by La.R.S. 17:1201 is merely the discretion to continue paying “the teacher’s full salary regardless of whether a substitute was hired.”

In opposition, the defendant school board argues that it has no obligation to grant a teacher additional sick leave beyond the mandatory ten days required by La.R.S. 17:1201 A(l) under the permissive language of La. R.S. 17:1201 A(2). Defendant further maintains that, while the limitations of La.R.S. 17:1202 are applicable when a teacher is granted extended sick leave by the school board, they are not applicable when the teacher’s request for extended sick leave has been denied.

The issue raised by this appeal was previously considered by this Court in Duet v. Lafourche Parish School Board, 625 So.2d 753 (La.App. 1st Cir.1993). As in the present case, the plaintiff in Duet sued the school board after she exhausted her accumulated sick leave and was denied extended sick leave by the school board. The trial court held the school board had no discretion to deny compensation to Ms. Duet because of her absence, without leave, due to illness. This Court affirmed the trial court, interpreting the language of R.S. 17:1201 A(2) and 1202 to mean that:

[T]he board [has] the authority to grant additional fully paid sick leave or a portion thereof with the limitation that in no event can the board deduct more from the salary of a teacher than the amount actually paid to a substitute. That is, the board may choose to pay a teacher more than the differential pay but not less. Thus, La. R.S. 17:1202 is a negative limitation on the board’s discretion granted in La.R.S. 17:1201 A. (2).

|fiIn dissenting from the majority opinion, Judge Shortess gave the following reasons.

Defendant did not grant plaintiff additional sick leave pursuant to Louisiana Revised Statute 17:1201(A)(2) after she exhausted her accumulated sick leave. Said statute gave defendant the discretion to deny such leave, and when it did, it was not obligated to pay plaintiff the differential pay. In my opinion, defendant would be liable for the differential pay only if it had granted the additional sick leave.

Upon further consideration of this issue, we believe we erred in Duet in holding that La.R.S. 17:1202 constitutes a limitation on the school board’s discretion to deny extended sick leave, and now agree with the rationale stated in Judge Shortess’ dissent. We believe a corollary to the permissive language of La.R.S. 17:1201 that school boards “may grant additional sick leave” is that school boards also have discretion to deny extended sick leave. We hold that the provisions of La.R.S. 17:1202 do not apply when a teacher has been denied extended sick leave by the school board.

In reaching a contrary conclusion, the opinion in Duet relied on four cases from the Fourth and Second Circuit. We note initially that two of these cases, Mitchell v. Tillman, 469 So .2d 363 (La.App. 2nd Cir.1985) and Morial v. Orleans Parish School Board, 332 So.2d 503 (La.App. 4th Cir.), writ refused, 337 So.2d 530 (1976), are clearly distinguish,able from the present case in that the teacher in each of these cases was granted additional sick leave, although the school board attempted to make the leave without pay. As previously noted, defendant recognizes that once a school board grants leave to a teacher, it is bound by the limitations of La.R.S. 17:1202. Thus, the issue in Mitchell and Morial was entirely different than the issue presented in the present case. In one of the other eases, Piper v. Orleans Parish School Board, 552 So.2d 460 (La.App. 4th Cir.1989), writ denied, 556 So.2d 36 (1990), the opinion does not indicate whether or not the teacher was granted additional sick leave.

Gayle v. Porter, 239 So.2d 739 (La.App. 4th Cir.), writ refused, 257 La. 171, 241 So.2d 531 (1970), is the only case relied upon by the majority in Duet in which it is clear that the teacher was not granted additional sick leave. In fact, the teacher in Gayle did not request ^additional leave for the two days that she was absent in excess of her accumulated sick leave. The Gayle court did not consider this fact important because, although the school board personnel handbook gave Gayle the right to request additional leave at full pay or at a rate greater than the differential pay provided by La.R.S. 17:1202, she was not required to do so. Thus, the facts of Gayle differ from the facts in Duet, as well as the present case, since the teacher in Gayle was not denied extended leave, but simply failed to request it. The Fourth Circuit specifically recognized this distinction, stating that “[w]e express no opinion as to the validity of a rule [in the parish school board personnel handbook] making it discretionary whether to grant or refuse a sick teacher additional leave; see Section 1201....” Gayle, 239 So.2d at 743.

Since each of these cases is distinguishable from the facts in this case and Duet, we conclude the majority’s reliance on these cases in Duet was misplaced. In any event, the First Circuit is not bound to follow cases of other circuits, and even if these cases could be construed to stand for the proposition that school boards do not have discretion to deny extended sick leave, we would decline to follow them based on our interpretation of the statutes in question. Nungesser v. Nungesser, 558 So.2d 695, 700 (La.App. 1st Cir.), writ denied, 560 So.2d 30 (1990). We conclude that the proper interpretation of La. R.S. 17:1201 and 1202 is that R.S. 17:1201 grants school boards the right to deny as well as to grant additional sick leave, and that R.S. 17:1202 is not applicable to situations where additional sick leave has been denied. Accordingly, we overrule Duet v. Lafourche Parish School Board, supra.

For the above reasons, we affirm the summary judgment rendered in favor of defendant, Terrebonne Parish School Board. Appellant is to pay all costs of this appeal.

AFFIRMED.

EDWARDS, J., concurs & assigns reasons.

LOTTINGER, C.J., dissents & assigns written reasons.

FOGG, J., dissents and assigns written reasons.

FOIL, J., dissents for the reason set forth by LOTTINGER, J.

CARTER, J., dissents for the reasons assigned by FOGG, J.

I EDWARDS, Judge,

concurs in the result for the following reasons:

LSA-R.S. 17:1201 is entitled “Amount of sick leave; injury on job.” LSA-R.S. 1201(A)(1) mandates a minimum of ten days absence, meaning authorized sick leave, without loss of pay.

LSA-R.S. (A)(2) authorizes school boards to “grant additional sick leave, without loss of pay, or with such reduction of pay as they may establish and fix.” If additional sick leave is granted, LSA-R.S. 17:1202 sets the maximum amount that can be deducted from the teacher’s pay.

However, school boards are not required to grant additional sick leave and section 1202 does not control the situation when additional sick leave is denied. If additional sick leave is denied, school boards are not obligated to pay the minimum amount mandated by section 1202.

LOTTINGER, Chief Judge,

dissenting.

I respectfully dissent.

The majority has correctly stated the facts and the issue before this court. However, in attempting to resolve what many see as a conflict between La.R.S. 17:1201 A(2) and 17:1202, I believe the majority has erred. The majority resolves this alleged conflict without discussion by simply holding:

We believe a corollary to the permissive language of La.R.S. 17:1201 that school boards “may grant additional sick leave” is that school boards also have discretion to deny extended sick leave. We hold that the provisions of La.R.S. 17:1202 do not apply when a teacher has been denied extended sick leave by the school board.

By failing to review the history and source of La.R.S. 17:1201 A(2) and 17:1202, the majority fails to understand what the legislature was attempting to do. Act 215 of 1940 is the source of the two statutes in question. Act 215 in its entirety reads:

AN ACT
To provide for the granting of a minimum of ten (10) days leave of absence due to illness or other emergencies, per school year, to teachers employed in the Public Schools of this State without loss of pay; to prohibit all Parish School Boards from deducting any amount whatsoever from a teacher’s salary, in case of absence, except such amount as may have actually been paid the substitute teacher as authorized and provided for, herein; and further prohibiting Parish School Boards from deducting amounts from teacher’s salaries for tardiness, except as herein provided for; and to provide penalties for violation of this Act.
Section 1. Be it enacted by the Legislature of Louisiana, That all teachers employed in the Public Schools of this | gState shall be entitled to and shall be allowed a minimum of ten (10) days leave of absence, as sick leave or in case of other emergencies, per school year, without loss of pay. The Parish School Board may grant additional sick leave, without loss of pay, or with such reduction of pay as they may establish and fix.
Section 2. That all Parish School Boards throughout this State are hereby prohibited from deducting any amount whatsoever from a teacher’s salary, in case of absence, unless a substitute teacher was employed and actually served, during such teacher’s absence; and only such amount may be deducted as was actually paid to the substitute teacher. Any teacher who suffers deduction from salary, under the provisions of this section, shall be entitled, upon request, to be furnished with the name and address of the substitute teacher. Nothing contained in this section shall be so construed as to authorize or permit any deduction from the pay of a teacher because of the employment or assignment of a substitute teacher during the minimum leave of absence period, without loss of pay, provided for, established and fixed in Section One (1) of this Act.
Section 3. That no teacher employed in the Public Schools of this State shall suffer any loss or deduction of pay for tardiness, unless such tardiness has caused loss of time from her official class duties, on more than two occasions and for a period of one hour or more, during any one school year. And in all cases where deduction of pay may be made, as herein provided, then and in such event, the amount of pay deducted shall be based on one (1) day’s pay proportioned to the period of tardiness. To definitely fix and establish the extent of time tardy, a teacher, upon request of her superior or principal, shall sign a slip stating the time of her arrival and reporting for duty; and if not requested so to do, she may voluntarily sign such slip and present it to her principal or superior.
Section 4. That any person who shall violate any provision of this Act shall be guilty of a misdemeanor and upon conviction before a court of competent jurisdiction, shall be fined not less than Twenty-five Dollars ($25.00) nor more than One Hundred Dollars ($100.00) and may be imprisoned for not less than five (5) days nor more than thirty (30) days, or both such fine and imprisonment, in the discretion of the Judge of Court.
Section 5. That all laws or parts of laws in conflict herewith are hereby repealed.

The source provisions in Act 215 are Sections 1 and 2 thereof. Except for subsequent legislative amendments, the source language has not changed. The title to Act 215 explains the act when it states “[t]o provide for the granting of a minimum of ten (10) days leave of absence due to illness or other emergencies, per school year, to | «teachers employed in the Public Schools of this State without loss of pay [and] to prohibit all Parish School Boards from deducting any amount whatsoever from a teacher’s salary, in case of absence, except such amount as may have actually been paid the substitute teacher....” The meaning and purpose of this act of the legislature could not be more clearly stated. And, as discussed below, this stated meaning and purpose is exactly what the body of the act does.

Section 1, now R.S. 17:1201 A(2), simply provided and now provides that public school teachers are guaranteed a minimum of ten (10) days leave of absence because of sickness or an emergency per school year without loss of pay. The distinctive and all important clause is “without loss of pay.” This simply and clearly means that for a minimum of ten (10) days a public school teacher can be absent because of sickness or an emergency and not one penny can be deducted from the teacher’s salary. During this ten (10) day period of time it is presumed that the school board will employ and pay a substitute to take over the duties of the absent teacher and that funds are expended over and above the budgeted salary of the absent teacher. We must all assume that school boards are responsible and that they will hire a substitute teacher and that they have contemplated and budgeted for absences “without loss of pay.”

The last sentence of both Section 1 of Act 215 and R.S. 17:1201 A(2) grants authority to school boards to “grant additional sick leave, mthout loss of pay, or with such reduction of pay as they may establish and fix.” “[S]uch reduction of pay as they may establish and fix” must mean more than without pay, because without the school board utilizing the last sentence that would be the result anyway. Absent this last sentence and without further legislative action, an absent school teacher is only guaranteed ten (10) days of absence without loss of pay. However, this last sentence authorizes a scenario of a school board granting additional sick leave with full pay or less than full pay even assuming the school board paid the substitute the full teacher salary. But, the legislature did not stop there, it went further.

In Section 2 of Act 215, now La.R.S. 17:1202, the legislature prohibited school boards from deducting from a teacher’s salary, in case of absence, any amount unless a substitute teacher was employed and actually served during the teacher’s uabsence, and only such an amount as was actually paid to the substitute teacher. Simply stated, this section limits the amount that may be deducted from an absent teacher’s salary. There is no limitation to the application of this section. It applies in all instances of teacher absence during the contracted teaching period because of sickness or emergency except where the teacher is receiving full pay.

If all the legislature had in mind was to guarantee ten (10) days of leave without loss of pay and permissive authority to school boards to grant more than ten (10) days with full pay or less than full pay, there would have been no need to enact Section 2 of Act 215. But, the legislature did enact Section 2, and the majority errs in not ascribing meaning to it.

In support of its position the majority cites Gayle v. Porter, 239 So.2d 739 (La.App. 4th Cir), writ refused, 257 La. 171, 241 So.2d 531 (1970), though it attempts to distinguish same on a dictum statement by the court. The holding of the court in Gayle is simply stated:

We find no conflict between R.S. 17:1201 and R.S. 17:1202.- The former addresses itself to the allowance of a minimum amount of sick leave to which the teacher is entitled and the latter addresses itself to the amount of deduction from wages in the event of illness. A reading of both sections together leads us to conclude that teachers are allowed at least 10 days sick leave with full pay regardless of whether a substitute teacher is hired. If the teacher is absent over 10 days for illness or other emergency then the Board may deduct only the amount that was paid to a substitute teacher if a substitute was hired. If none was hired, then there is to be no deduction. Section 1202 merely bolsters 1201 in that it prohibits the deduction from the pay of a teacher who is ill during any of the guaranteed 10 days leave provided for in Section 1201. The first part of 1202 obviously refers to a situation where a teacher is absent because of illness, beyond the guaranteed 10 days leave. It prohibits the School Board in such a case from deducting any amount from a teacher’s salary in ease of such absence unless a substitute was employed and actually served during the teacher’s absence and only such amount may be deducted as was actually paid to the substitute teacher.

239 So.2d at 742.

As noted, the supreme court refused writs but with the explanation, “[n]o error of law.” The language in R.S. 17:1201 A(2) and 17:1202 as it relates to the issue before this court has not been changed, much less since the Gayle decision. However, lain the 1987 and 1988 Regular Sessions of the Louisiana Legislature bills were introduced to repeal R.S. -17:1202. Neither of these bills were enacted into law. We must assume that the legislature is aware of judicial decisions interpreting acts of the legislature. Is the failure or refusal of the legislature to repeal R.S. 17:1202 an indication that the legislature agrees with the interpretation in the Gayle decision?

It occurs to this writer that prior to Act 216, some fifty (50) plus years ago, public school teachers had no protection from not getting paid if they were sick or absent because of an emergency. Thus it seems that the legislature acted within its wisdom, and wisely so I might add, in enacting Act 215 of 1940 to protect the public school teachers of this state and at the same time not overburden the school boards by providing:

1) ten (10) days guaranteed sick or emergency leave without loss of pay,
2) authority for school boards to grant additional sick leave without loss of pay and/or with a reduction in pay, but
3) in no event could a deduction from a teacher’s salary be made in case of absence unless a substitute teacher was employed and served, and the deduction could not exceed the amount paid the substitute.

This plan or scheme is similar to an insurance plan which would pay the teacher’s salary during the sickness less any amount it cost for a substitute. It was nothing more than legislation granting the public school teachers of this state an added benefit in case of sickness. Except for the ten (10) days of guaranteed leave without loss of pay, this legislative plan costs the school boards nothing because they already contracted and budgeted to pay the teacher, and it is from that source that they pay for the substitute teacher. It certainly could be argued that what the school boards seek to do is pay the substitute teacher less than the contracted for salary and pocket the remainder for another day. Today by this opinion the majority takes away from the public school teachers a battle won more than fifty (50) years ago.

With this opinion the majority creates a conflict between the circuits as to the interpretation of these statutes which now cries for the supreme court to resolve and settle this dispute.

FOGG, Judge,

dissenting.

I believe La.R.S. 17:1201 A (2) and 1202 give the school board authority to grant additional sick leave at full pay, and to grant additional sick leave at partial pay, but prohibit the school board from deducting any amount over the amount actually paid to a substitute teacher. That is precisely the holding of this court in Duet v. Lafourche Parish School Board, 625 So.2d 753 (La.App. 1st Cir.1993).

I respectfully dissent. 
      
      . In conceding that La.R.S. 17:1202 is applicable if the school board grants a teacher's request for extended sick leave, defendant acknowledges that it does not have discretion to grant additional sick leave without pay.
      
     
      
      . We note that another Fourth Circuit case reaches a similar holding, to wit, St. Bernard Educators v. School Bd., 619 So.2d 678 (La.App. 4th Cir.), writ denied, 625 So.2d 171 (1993), but is not cited by the majority in Duet.
      
     
      
      . House Bill No. 850 in 1987 and Senate Bill No. 131 in 1988.
     