Ira Babin, II, et al v. Pam Breaux, et al

Filing

UNPUBLISHED OPINION FILED. [13-31252 Affirmed ] Judge: CDK , Judge: JEG , Judge: SAH Mandate pull date is 10/16/2014 [13-31252]

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IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
FOR THE FIFTH CIRCUIT
Fifth Circuit

FILED
No. 13-31252

September 25, 2014
Lyle W. Cayce
Clerk

IRA PAUL BABIN, II; THOMAS G. RAY, JR.,
Plaintiffs - Appellants

v.

PAM BREAUX, Individually; SCOTT HUTCHESON, Individually; JAY
DARDENNE, Lieutenant Governor of the State of Louisiana acting Secretary
of the Louisiana Department of Culture, Recreation and Tourism; JAMES L.
HUTCHINSON, Assistant Secretary of Tourism of the Department of
Culture, Recreation and Tourism,
Defendants - Appellees

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:10-CV-368
Before KING, GRAVES, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Appellants Ira Babin, II and Thomas Ray, Jr., former employees of the
State of Louisiana who were laid off, appeal the district court’s grant of
summary judgment in favor of Appellees on their claims under 42 U.S.C.
§ 1983 for violation of Appellants’ rights to procedural and substantive due

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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process under the United States and Louisiana Constitutions, and for violation
of the contracts clauses of those constitutions. Appellant Ray appeals the
district court’s grant of summary judgment on his claim for unlawful
retaliation for exercise of his constitutional rights in violation of 42 U.S.C.
§ 1983. All Appellants appeal the district court’s ruling that Appellees are
entitled to qualified immunity. For the following reasons, we AFFIRM the
judgment of the district court.
I.

Factual and Procedural History

Appellant Ira Babin, II was a classified civil service employee in the
Marketing Division of the Louisiana Department of Culture, Recreation, and
Tourism’s Office of Tourism. He served as the Director of Marketing for that
office.
Appellant Thomas G. Ray, Jr. was also a classified civil service employee
in the Louisiana State Department of Culture, Recreation, and Tourism,
though he served in the Office of Cultural Development. His position was
“Cultural Program Analyst 2.”
Both Babin and Ray were laid off from their positions on June 28, 2009.
As the events leading up to their layoffs differ, we treat Babin and Ray
separately.
A.

Ira Babin

The layoffs in the Marketing Division of the Office of Tourism originated
in mid- to late-2008. In July 2008, then-Lieutenant Governor Mitch Landrieu
appointed Defendant-Appellee Pam Breaux Secretary of the Department of
From the start of Breaux’s tenure,

Culture, Recreation, and Tourism. 1

Landrieu expressed concerns about the organization and efficiency of the
Throughout Breaux’s tenure, there was no Assistant Secretary for the Office of
Tourism within the Department of Culture, Recreation, and Tourism. As the secretary of the
department, Breaux therefore was also ultimately in charge of managing that office.
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Marketing Division of the Office of Tourism. Landrieu charged Breaux, as the
new head of the department, with evaluating the department’s structure and
reporting back to him with a plan for a reorganization of the Office of Tourism.
Thereafter, Breaux developed just such a plan, which involved
substantial layoffs in the Marketing Division.

Breaux consulted with the

Louisiana Department of State Civil Service in formulating the reorganization
and layoff plan in order to be sure that it complied with all Louisiana Civil
Service Rules (“Civil Service Rules”). On May 26, 2009, Breaux submitted the
proposed reorganization and layoff plan (“Tourism Layoff Plan”) to the
Department of State Civil Service.
The next day, May 27, 2009, Breaux told Babin that he would be laid off.
Babin was given a copy of the Tourism Layoff Plan and a Notification of
Impending Layoff.
The Tourism Layoff Plan contained several paragraphs explaining the
rationale behind the proposed layoffs and reorganization, including specific
information about the purpose and nature of the restructuring. For example,
the plan states that “deeper tourism research is sorely needed. . . . For this
reason, it is important for the State to supply this level of research.” Later, the
plan explains “that agency efforts need to be redirected largely away from sales
missions” towards other areas. The plan also speaks specifically to marketing
jobs—Babin’s area—stating, among other things: “Marketing series and public
information series job fields will be abolished . . . . because we will no longer
need Office of Tourism staff to mostly perform marketing . . . . Instead . . . the
new structure will require agency staff to manage sponsorships, contracts and
partnerships.”
The accompanying notification stated that comments on the Tourism
Layoff Plan could be made in writing to Breaux, the head of the department,
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Jan Ramezan, the Director of Human Resources (“HR”); and to Shannon
Templet, the Director of the Department of State Civil Service. 2
Babin took advantage of that offer and met with Breaux to discuss the
proposed layoffs on May 29, 2009, though he submitted no written comments.
On June 3, 2009, Breaux appeared before the Civil Service Commission
at their general business session to address the proposed layoffs. Babin was
also present, and his attorney appeared before the Commission on his behalf
to protest the Tourism Layoff Plan. That same day, the Tourism Layoff Plan
was approved by the Department of State Civil Service, and Templet, the
director of that department, authorized Breaux to go forward with the Tourism
Layoff Plan.
Babin was laid off on June 28, 2009.
B.

Thomas Ray

Meanwhile, budget cuts were forcing a reorganization within another
office in the Department of Culture, Recreation, and Tourism—the Office of
Cultural Development. In July 2008, Landrieu appointed Scott Hutcheson
Assistant Secretary for the Office of Cultural Development. Hutcheson was
informed that the budget for the office was being slashed, and the number of
positions within the office had to be cut down from 49 to 31 for the next fiscal
year.
In response to those budget cuts, Hutcheson formed a layoff plan for the
Office of Cultural Development (“Cultural Development Layoff Plan”). The
Cultural Development Layoff Plan proposed abolishing several positions,

Specifically, the notification provided: “This plan is being submitted to the Director
of the State Civil Service and must be approved by the Director before layoff actions can be
taken. Any comments regarding the layoff may be made in writing to me, Pam Breaux, or
Jan Ramezan, Human Resources Director. You may also address your comments to Ms.
Shannon Templet . . . . You are urged to provide any responses you may have to one or both
of the above-stated persons within five (5) days of receipt of this notice.”
2

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including Ray’s. Hutcheson sent the Cultural Development Layoff Plan to
Templet at the Department of State Civil Service on May 20, 2009.
On May 27, 2009, Hutcheson, Ramezan, and Desiree Honore,
Undersecretary of the Department of Culture, Recreation, and Tourism met
with the Office of Cultural Development employees who would be laid off. It
was a group meeting, and Ray attended. Hutcheson explained the reason for
the layoff—the budget cuts—and provided the employees with a packet of
layoff material.

That packet included a layoff notice and the Cultural

Development Layoff Plan. Ray’s layoff notice informed him that he could
comment on the Cultural Development Layoff Plan in writing, stating “[a]ny
comments regarding the layoff may be made in writing to myself Scott
Hutcheson or Jan Ramezan, Human Resources Director. You may also address
your comments to Ms. Shannon Templet . . . . You are urged to provide any
responses you may have to one or both of the above-stated persons within five
(5) days of receipt of this notice.” Hutcheson also informed the employees of
their right to respond and comment on the Cultural Development Layoff Plan
to him, Ramezan, and Templet at that meeting.
Ray neither sent comments to Hutcheson, Ramezan, or Templet in
writing, nor did he attempt to meet with any of them in person to comment on
the proposed layoffs. Ray also did not attend the Civil Service Commission
meeting about the proposed layoffs that Babin attended on June 3.
The Civil Service Commission approved the Cultural Development
Layoff Plan on June 3, 2009, and Ray’s last day of work was June 28, 2009.
Prior to the budget cuts and subsequent layoffs, a situation occurred
within the Office of Cultural Development that forms the basis for Ray’s
retaliation claim. Ray alleged that another employee within the department,
Kathleen Pheney, was abusing the payroll system by being paid for days she
did not work. His initial complaint was made in February 2007, and the
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investigation lasted until January 2008. At that point, HR was unable to prove
the accusations against Pheney, and Ray claims that he was targeted by
Breaux, allegedly a friend of Pheney’s, and others within the Office of Cultural
Development.
After Hutcheson became Assistant Secretary in July 2008, Ray was
investigated for improper computer usage and Hutcheson issued him a
reprimand. Ray alleges he was investigated as retribution for having reported
Pheney.

Ray also claims that he was laid off in retaliation for reporting

Pheney. Pheney was also laid off on June 28, 2009.
C.

Procedural Background

After they were laid off, Babin and Ray filed suit under 42 U.S.C. § 1983
alleging violation of their right to procedural and substantive due process
under the United States Constitution, U.S. Const. amend. XIV, and the
Louisiana Constitution, La. Const. art. I, § 2. Babin and Ray also claimed that
their termination violated the Contracts Clause of the United States
Constitution, U.S. Const. art. I, § 10, and the Louisiana Constitution, La.
Const. art. I, § 23. Lastly, Ray alleged that his termination was unlawful
retaliation under 42 U.S.C. § 1983, because it violated his right to freedom of
expression under the First and Fourteenth Amendments to the United States
Constitution and under the Louisiana Constitution.
The district court granted Appellees’ motion for summary judgment as
to all of Babin’s and Ray’s claims. The district court held that Babin’s and
Ray’s procedural due process rights were not violated, as they had received
adequate notice and an opportunity to be heard. Additionally, the district court
held that there was no substantive due process violation, as the layoffs were
not arbitrary and capricious. As to the claims under the contracts clauses, the
district court held that because Babin and Ray had no “bumping rights,” there
was no violation of the contracts clauses. Lastly, the district court held that
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there was no genuine issue of material fact on Ray’s retaliation cause of action
as there was no evidence that Hutcheson knew Ray had engaged in a protected
activity. Babin and Ray then took this appeal.
II.

Procedural Due Process

We review a district court’s grant of summary judgment de novo,
applying the same standard as the district court. Johnson v. City of Shelby,
Miss., 743 F.3d 59, 61 (5th Cir. 2013). Summary judgment is appropriate “if
the movant shows that there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute of fact is
genuine if it may “reasonably be resolved in favor of either party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
“An essential principle of due process is that a deprivation of life, liberty,
or property ‘be preceded by notice and opportunity for hearing appropriate to
the nature of the case.’” 3 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532,
542 (1985) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306,
313 (1950)). The type of notice and hearing required—that is, what process is
due—depends on the context of the individual case. Due process, “‘unlike some
legal rules, is not a technical conception with a fixed content unrelated to time,

We assume, without deciding, that the procedural due process analyses under the
Louisiana Constitution and the United States Constitution are the same. Appellants do not
differentiate the claims in their briefs, and they do not elucidate any relevant divergences in
the analyses. Additionally, the Louisiana cases they cite apply federal case law in deciding
Louisiana procedural due process claims and do not differentiate the analyses. See Bell v.
Dep’t of Health & Human Res., 483 So. 2d 945, 949–51 (La. 1986); In re Adoption of B.G.S.,
556 So. 2d 545, 552–54 (La. 1990); Wilson v. City of New Orleans, 479 So. 2d 891, 894–97,
899–901 (La. 1985); Paillot v. Wooton, 559 So. 2d 758, 760–63 (La. 1990); Fields v. Louisiana
ex rel. Dep’t of Pub. Safety & Corr., 714 So. 2d 1244, 1250–61 (La. 1998); Louisiana State Bar
Ass’n v. Ehmig, 277 So. 2d 137, 139–40 (La. 1973). Appellants also cited Article 10, Section
8(A) of the Louisiana Constitution as supporting their procedural due process claims. That
provision applies to disciplinary actions and is therefore inapplicable here. See La. Const.
art. 10, § 8(A).
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place and circumstances.’” Mathews v. Eldridge, 424 U.S. 319, 334 (1976)
(quoting Cafeteria Workers v. McElroy, 367 U.S. 886, 895 (1961)). Rather, it
“‘is flexible and calls for such procedural protections as the particular situation
demands.’” Id. (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)). As
such, the determination of “what process is due” requires an analysis of the
interests at stake in a given case. See id. at 334–35.
Mathews instructs that there are three distinct interests to be
considered: (1) the private interest affected; (2) the “risk of an erroneous
deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards;” and (3) “the
Government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.” Id. at 335.
Here, the private interest affected was significant—Babin and Ray both
lost their jobs. Nonetheless, while perhaps nothing can mitigate the profound
disruption that being laid off may well have wrought, the district court rightly
noted that “the deprivation suffered by employees because of a layoff required
for financial reasons is not accompanied by the same stigma as an employee
terminated for cause.”
The second factor—the risk of an erroneous deprivation of such
interest—is low in this case. The process here was long and involved multiple
different offices within the state government. Breaux formulated the Tourism
Layoff Plan over a period of several months and in conversation with the
Lieutenant Governor’s Office.

Hutcheson similarly formed the Cultural

Development Layoff Plan through meetings and conversations with the
undersecretary of the department. HR was also involved in forming both layoff
plans. Both plans were submitted to the Department of State Civil Service to
ensure that they complied with the Civil Service Rules. The Department of
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State Civil Service then had an open general business meeting where at least
the Tourism Layoff Plan was discussed and debated. Finally, the affected
employees themselves had an opportunity to weigh in. Each affected employee
was provided with a layoff notification that informed him that written
comments could be made to Breaux (or Hutcheson), Ramezan, or Templet and
should be given within five days. Employees were also given a copy of the
relevant layoff plans, all in accordance with the Civil Service Rules. See La.
Civ. Serv. R. 17.10. 4 After receiving the notice and layoff plan, employees were
able to—and Babin did—respond to the layoff plans to the department and
office heads responsible for making the layoff decisions. After the layoffs,
employees were entitled to appeal their layoffs through the Department of
State Civil Service.
The third factor is the government’s interest, including “the fiscal and
administrative burdens that the additional or substitute procedural
requirement would entail.” Mathews, 424 U.S. at 335. Here, those burdens
would be prodigious, especially considering that the layoffs at issue were, at
least in the Office of Cultural Development, precipitated by severe budgetary
constraints, and in light of the significant process already afforded to Babin
and Ray by the Civil Service Rules. Requiring that, in a layoff situation, each

The provision, at the time of the events at issue, read:
(a) For layoffs involving permanent employees, the following notices are required:
1. The appointing authority shall, as soon as it is reasonably determined that a layoff
will be necessary, make a reasonable attempt to notify all employees who could be
affected.
2. Once a layoff plan is approved by the Director, it shall be made generally available
to the employees who could be affected.
3. Employees in positions proposed for abolishment shall be so notified at least five
(5) calendar days prior to approval of the plan by the Director.
4. Employees shall be notified of displacement offers, or layoff notification if there is
no offer to make. There shall be at least five (5) calendar days between the last
such notice and the effective date of layoff.
La. Civ. Serv. R. 17.10 (prior to June 3, 2009).
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laid off employee be afforded an opportunity to meet with the final decision
maker and dispute his selection for the layoff, the policies underlying the
layoff, and the evidence and research underlying those policies, would be
burdensome in the extreme, and it is difficult to see here what additional value
such a meeting would bring.
As such, the district court correctly concluded that Babin and Ray were
afforded all the process they were due under Mathews. The core procedural
due process requirements are notice and an opportunity to be heard,
Loudermill, 470 U.S. at 542, and both were provided here.
Babin was provided with a layoff notification and a copy of the Tourism
Layoff Plan. The Tourism Layoff Plan provided him with information about
the reasons underlying the reorganization and the layoffs. The information
was sufficient to provide him with a “meaningful opportunity to present [his]
case.” Mathews, 424 U.S. at 349.
Similarly, Ray was provided with a layoff notification and a copy of the
Cultural Development Layoff Plan. Both of those documents explained that
the layoffs were necessitated by budget concerns, satisfying the due process
requirement of notice. See Russell v. Harrison, 736 F.2d 283, 289–90 (5th Cir.
1984) (“The letters stated that the reason for termination was the financial
emergency found to exist by the Board of Trustees. . . . We concur in the district
court’s conclusion that the due process requirement of notice was satisfied.”).
Ray heard Hutcheson explain the necessity of the layoffs again at the group
meeting on May 27, 2009.
Both were also afforded the opportunity for a hearing, though only Babin
took advantage of it. Babin’s layoff notification expressly told him he could
present written comments about the layoffs to Breaux, Ramezan, and Templet.
While Babin did not submit comments in writing, Breaux personally invited
Babin to meet with her to discuss the proposed layoffs, which he did on May
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29, 2009. Babin’s counsel also objected to the layoff plan at the Department of
State Civil Service’s general business meeting on June 3, 2009. Counsel for
Appellants asserts that this was not a sufficient hearing because the Civil
Service Commission was looking solely at whether the layoff plan comported
with Civil Service Rules. Appellants’ counsel asserts that what due process
required was an opportunity to meet with the ultimate decision maker. But,
assuming that is what is required, that is exactly the opportunity Babin took
advantage of. Babin met with Pam Breaux, who was the architect of the entire
reorganization and layoff scheme. In his deposition, Babin states that he even
expressed concern over the special exception granted Nancy Broussard in the
Tourism Layoff Plan, indicating that he had read that document at the time
he met with Breaux. If he disagreed with the goals of her reorganization, if he
thought he would be able to contribute meaningfully to the reorganized
department, or if he thought the entire reorganization was misguided, he had
the opportunity to express that to the ultimate decision maker.

See Tex.

Faculty Ass’n v. Univ. of Tex. at Dallas, 946 F.2d 379, 388 (5th Cir. 1991) (“The
‘hearing’ offered need only be an opportunity for the aggrieved faculty member
to meet with the ultimate decision maker, to present his or her case orally, and
to explore with the decision maker the possible alternatives to termination.”);
Brown v. Tex. A&M Univ., 804 F.2d 327, 335 (5th Cir. 1986) (“Had he chosen
to do so, Brown could have, and in some cases may have, contested both the
University’s charges and its contemplated action on myriad occasions.
Although informal in nature, these meetings presented Brown with more than
adequate opportunity to have his case heard, and thus were sufficient to satisfy
constitutional minima.”). Moreover, Babin had the right to appeal his layoff
through the Civil Service system, a right of which he did not take advantage.
Due process may require less; it certainly requires no more.
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Similarly, Ray was told in the layoff notification that he could present
any comments in writing to Scott Hutcheson, who, as Assistant Secretary, was
the ultimate decision maker for the Office of Cultural Development. If there
was any ambiguity, Hutcheson also told Ray and the other employees at the
meeting on May 27, 2009, that they had a right to respond and comment upon
the Cultural Development Layoff Plan to him, Ramezan, and Templet. See
Tex. Faculty Ass’n, 946 F.2d at 388 (“[T]he procedure UTD employed might
have been very simple indeed. Initially, the administration probably need only
consider, in good faith, a written submission from each affected faculty member
setting out why he or she deserves to be retained. Only if a particular faculty
member makes a colorable showing that, under the objective criteria the
university employs, he or she deserves to be retained in another academic
program, must any sort of ‘hearing’ be offered.”). That Ray did not see fit to
take advantage of these opportunities does not negate the fact that a hearing
was available to him. Cf. id. at 389 (“Only where ‘faculty members know that
the opportunity for an adequate hearing is available and choose to forgo that
opportunity, do they act at their peril.”) (quoting Russell v. Harrison, 632 F.
Supp. 1436, 1442 (N.D. Miss. 1986)) (brackets removed). Ray also declined to
appeal his layoff through the Civil Service system.
We also note that we need not decide how high up in the department the
administrator before whom the employee had the opportunity to be heard must
be. Rather, we hold that the opportunity for a hearing before the department
executive in charge of designing and implementing the layoff policy, which was
provided here, is at least sufficient to meet constitutional minima.

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III.

Substantive Due Process

Summary judgment was also appropriate on Appellants’ substantive due
process claims. 5 In order to succeed on a claim for violation of substantive due
process “in the public employment context, the plaintiff must show two things:
(1) that he had a property interest/right in his employment, and (2) that the
public employer’s termination of that interest was arbitrary or capricious.”
Moulton v. City of Beaumont, 991 F.2d 227, 230 (5th Cir. 1993); cf. County of
Sacramento v. Lewis, 523 U.S. 833, 845 (1998) (“We have emphasized time and
again that ‘the touchstone of due process is protection of the individual against
arbitrary action of government.’” (quoting Wolff v. McDonnell, 418 U.S. 539,
558 (1974))). Substantive due process is satisfied if the employer acted with a
specific exercise of professional judgment in a non-arbitrary and noncapricious manner. Spuler v. Pickar, 958 F.2d 103, 107 (5th Cir. 1992) (“The
only substantive process due Spuler, assuming he had a property interest, was
the exercise of professional judgment, in a non-arbitrary and non-capricious
fashion.”); Texas ex rel. Bd. of Regents of the Univ. of Tex. Sys. v. Walker, 142
F.3d 813, 819 (5th Cir. 1998) (holding that substantive due process is not
violated unless the court can say the official’s determinations “so lacked a basis
in fact that their decision . . . was arbitrary, capricious, or taken without
professional judgment”).
Here, there can be no successful contention that the official action
violated Babin’s and Ray’s substantive due process rights. The Tourism Layoff
Plan was formulated over a period of almost ten months and involved
evaluation, discussion, and analysis among Breaux (the Secretary of the
Appellants failed to cite a single authority in support of their substantive due process
claim under the Louisiana Constitution; accordingly, we affirm summary judgment. United
States v. Scroggins, 599 F.3d 433, 446 (5th Cir. 2010) (“A party that asserts an argument on
appeal, but fails to adequately brief it, is deemed to have waived it.”) (internal quotation
marks omitted).
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Department of Culture, Recreation, and Tourism), Landrieu (the Lieutenant
Governor), HR, the Department of State Civil Service, the Assistant
Secretaries within the Department of Culture, Recreation, and Tourism, and
Honore, the undersecretary of the department.
Similarly, the Cultural Development Layoff Plan was developed by
Hutcheson in cooperation with Human Resources, Civil Service, and the
undersecretary of the department, in response to a significant budget cut.
Nevertheless, Appellants put forward three arguments that the layoffs
were arbitrary, capricious, or made without professional judgment. First,
Appellants argue that there were no uniform, objective criteria for the layoffs.
Yet, Appellants have failed to put forward any evidence suggesting that was
the case. Given the extensive deliberation and analysis afforded the layoff
decisions, Appellants have failed to raise a genuine issue of material fact that
the layoff decisions were not the result of “an exercise of professional judgment
in a non-arbitrary and non-capricious manner.” See Spuler, 958 F.2d at 107.
Second, Appellants argue that Babin’s and Ray’s substantive due process
rights were violated because they were not afforded a post-deprivation hearing.
The only case they cite to support this argument, Schaper v. City of Huntsville,
813 F.2d 709 (5th Cir. 1987), is wholly distinguishable. Schaper noted a line
of Supreme Court cases holding that where a post-deprivation hearing could
fully redress a constitutional injury caused by a “random and unauthorized”
official act, procedural due process was not violated. Id. at 717. The court
therefore held that it would be inconsistent with that doctrine to allow recovery
for the same “random and unauthorized” official act on substantive due process
grounds on the basis that the official’s action was arbitrary and capricious. Id.
at 718. Essentially, then, Schaper set a higher bar for substantive due process
violations in certain situations, holding that even when an official acted in an
arbitrary and capricious manner, a plaintiff cannot recover if there is an
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adequate state-law post-deprivation remedy. Id. Appellants’ argument fails
because they cite no authority for their broad assertion that actually supports
it. Scroggins, 599 F.3d at 446 (“A party that asserts an argument on appeal,
but fails to adequately brief it, is deemed to have waived it.”) (internal
quotation marks omitted).
Third, Babin argues that the hiring of Mindy Velasquez to a newly
created position in the Office of Tourism was arbitrary and capricious. Babin
argues that he is objectively more qualified for the new position than
Velasquez,

and

that

Velasquez’s

appointment

was

motivated

by a

recommendation from a donor to Landrieu’s campaign. Babin’s arguments
have no bearing, however, on his substantive due process claim. The fact that
Babin was not hired for a new position within the department is irrelevant to
determining whether his layoff was arbitrary and capricious.
IV.

The Contracts Clauses

Appellants assert additional claims under the Contracts Clauses of the
United States and Louisiana Constitutions. U.S. Const. art. I, §10; La. Const.
art. I, § 23. Contracts Clause claims are analyzed using a three-step analysis:
(1) the state law must have substantially impaired a contractual relationship;
(2) the state’s asserted justification for the impairment must serve a significant
and legitimate public purpose; and (3) the challenged law must be reasonably
necessary to achieve the public purpose. United Healthcare Ins. Co. v. Davis,
602 F.3d 618, 627 (5th Cir. 2010). 6
Implicit in the first step is a requirement that the plaintiff actually
identify a provision of his contract that has been impaired. Appellants here

The analysis under the contracts clause of the Louisiana Constitution is identical for
all intents and purposes. See Louisiana v. All Prop. & Cas. Ins. Carriers Authorized &
Licensed to Do Bus. in the State of La., 937 So. 2d 313, 324 (La. 2006).
6

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have done no such thing. 7 Appellants’ brief points out that the Civil Service
Rules “become a part of Plaintiffs’ employment agreements and were
incorporated therein, as though expressly forming a part of the Plaintiffs’
employment agreements.” Even assuming arguendo that is true, they point to
no entitlement in the Civil Service Rules that was later impaired by the State.
In fact, the Civil Service Rules expressly provided for the possibility of layoffs.
See La. Civ. Serv. R. ch. 17 (“Layoff Avoidance Measures, Layoffs, and Post
Layoff”). Further, counsel for Appellants stated at oral argument that Babin’s
and Ray’s layoffs complied with the Civil Service Rules.
Appellants’ brief also generally avers that “the job security rights of
permanent classified state employees are not only property rights protected by
the Due Process Clauses . . . they are also contract rights which are protected
by the Contracts Clauses.” They also state that “it cannot be persuasively
argued that the Defendants’ evisceration of the Plaintiff’s property and
contract rights is permissible, notwithstanding the protections of the Contracts
Clauses.” If we give Appellants the benefit of the doubt and assume arguendo
that their broad assertions have merit, those assertions fail to identify any
specific contractual expectation of which they were denied. The most specific
allegation is found in their reply brief, arguing that “Civil Service merely
changed the titles of the position and that the functions continued to exist and
were performed by private contractors.” But that argument again fails to
identify a specific contractual provision (or Civil Service Rule allegedly
incorporated into the contract) that Appellants claim was substantially
impaired.

While the contracts clause argument in Appellants’ complaint appears to have been
premised on their having had “bumping rights,” Appellants have unequivocally waived that
argument in their reply brief.
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As such, the grant of summary judgment on the contracts clause claims
was not in error.
V.

Retaliation

Ray also contends that he was laid off in retaliation for reporting
potential payroll abuse by Pheney. 8 In order to prove a claim of retaliation in
violation of the First Amendment under 42 U.S.C. § 1983, a plaintiff must
show: “(1) the plaintiff suffered an adverse employment decision, (2) the
plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s interest
in speaking outweighed the governmental defendant’s interest in promoting
efficiency, and (4) the protected speech motivated the defendant’s conduct.”
Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004) (en banc); accord Haverda
v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013). If the plaintiff makes such a
showing, the employer may still avoid liability if it can “show[] by a
preponderance of the evidence that it would have reached the same decision .
. . even in the absence of the protected conduct.” Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); accord Beattie v. Madison Cnty.
Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001).
The district court granted summary judgment on the basis that there
was no genuine dispute of material fact that Ray’s complaints about Pheney
were a motivating factor in Hutcheson’s layoff decision. The court noted that
there was no evidence in the record that Hutcheson was aware that Ray had
made the complaint about Pheney, and, in his affidavit, Hutcheson denied
having such knowledge at the time he made the layoff decision.
On appeal, Ray argues that his deposition testimony that Hutcheson
discussed issues with Pheney’s attendance in meetings shows that Hutcheson

Appellants do not mention their Louisiana state law claim as to retaliation in their
brief. Accordingly, it is waived. Scroggins, 599 F.3d at 446.
8

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was aware of Ray’s complaints about Pheney. That conclusion simply does not
follow. Ray’s deposition testimony indicates only that Hutcheson was aware of
incidents where Pheney was not at meetings and events she was supposed to
attend after Hutcheson became director. There is no evidence that Hutcheson
was aware of the earlier investigation or, most essentially, that Ray was the
one who initiated the complaints leading to that investigation.

Further,

neither the computer violation nor the fact that Ray continued passing
information on Pheney to the internal auditor well after the investigation had
closed shows that Hutcheson knew Ray was the one who had reported Pheney.
That knowledge is key to establishing that Ray’s complaints were a motivating
factor in Hutcheson’s decision to lay him off. Having adduced no such evidence,
there is no genuine dispute of material fact on the motivating factor element,
and the district court did not err in granting summary judgment.
VI.

Qualified Immunity

Having determined that there was no violation of Babin’s or Ray’s
constitutional rights, we need not reach the issue of qualified immunity.
VII. Conclusion
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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