Faulk v. Duplantis et al
Filing
56
ORDER granting 32 Motion to Dismiss; denying as moot 33 Motion to Dismiss; denying 34 Motion to Dismiss; granting in part and denying in part 35 Motion for Summary Judgment; granting 36 Motion for Summary Judgment. Signed by Judge Jay C. Zainey. (Reference: 12-1714, 12-1717)(jrc, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KYLE FAULK & MILTON WOLFE, JR.
CIVIL ACTION
VERSUS
NO: 12-1714 C/W 12-1717
TODD M. DUPLANTIS, ET AL.
SECTION: "A" (3)
ORDER AND REASONS
The following motions are before the Court: Motions to Dismiss (Rec. Docs. 32,
33, & 34); Motions for Summary Judgment (Rec. Docs. 35 & 36) filed by defendants
Todd Duplantis, individually and in his official capacity as Chief of Police of the Houma
Police Department, Michel Claudet, individually and in his official capacity as President of
Terrebonne Parish, and the Terrebonne Parish Consolidated Government (“TPCG”).
Plaintiffs Kyle Faulk and Milton Wolfe, Jr. have filed their responses to each of the motions.
The motions, noticed for submission on July 17, 2013, are before the Court on the briefs
without oral argument.
I.
BACKGROUND
Kyle Faulk, individually and on behalf of his two minor children Katie Marie Faulk
and Isabella Faulk, filed Civil Action 12-1714 pursuant to 42 U.S.C. § 1983 alleging First
Amendment retaliation by defendants Todd Duplantis, Michel Claudet, and the TPCG.
Milton Wolfe, Jr. filed Civil Action 12-1717 asserting claims similar to Faulk’s.
The consolidated actions are scheduled to be tried to a jury on December 9, 2013.
(Rec. Doc. 55).
Common Allegations
1
Faulk’s and Wolfe’s complaints stem from legislative action pertaining to Louisiana
House Bill 106 (“HB106"). HB106 was a legislative instrument that sought to permanently
remove the position of Houma Chief of Police from the state civil service system.1 Faulk and
Wolfe were employed by the Houma Police Department at all times pertinent.
On April 14, 2012, attorney for Plaintiffs herein became convinced that HB106 was
violative of state law and could potentially violate a federal consent decree in place since
1977.2 On April 19, 2012, Plaintiffs’ counsel drafted an email explaining her concerns and she
circulated that email throughout Terrebonne Parish. Within that email, counsel identified
two minority captains of the Houma Police Department who she believed would be
disadvantaged by HB106. According to counsel, these minority captains had more seniority
than Todd Duplantis, the current Chief, and they were both eligible for the chief’s position
whereas Duplantis was not. Counsel opined that Parish President Michel Claudet had
illegally placed Duplantis in the position of chief. One of the minority captains identified in
counsel’s email was Milton Wolfe, Jr., a plaintiff herein.
On May 10, 2012, HB106 was discussed during the Louisiana Senate Local and
Municipal Affairs Committee. Plaintiff Faulk, who was a past president and founding
HB 106 was introduced in the House by Representative Gordon E. Dove, Sr. of
Terrebonne Parish. The purpose of the bill was to extend the sunset provision contained in La.
R.S. § 33:2841.3(C). Section 33:2841.3 had been enacted in July 2009 to remove the position of
Chief of Police for the City of Houma from the classified service to the unclassified service, and
to vest the right of selection for the position in the parish president subject to the approval of the
parish governing authority. The statute contained a sunset provision that rendered it null and
void on July 1, 2012. La. R.S. § 33:2481.3(C) (2009). HB 106, which eventually became 2012 La.
Act no. 572, was signed into law on June 7, 2012, and it simply extended the sunset provision to
July 1, 2016. La. R.S. § 33:2481.3(C) (West Supp. 2013).
1
That consent decree was dissolved as to the City of Houma’s fire and police
departments on November 15, 2012, by United States District Judge Lance M. Africk. (CA772040, Doc. No. 180).
2
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member of the Houma Police Association, went to the committee meeting to speak against
HB106. Faulk had also voiced opposition to HB106 at a meeting of the Terrebonne Parish
Council held on April 30, 2012.
Faulk’s Allegations
Faulk is a sergeant with the Houma Police Department. Faulk alleges that on April 24,
2012, which was only two business days after counsel’s email, Duplantis removed Faulk from
his position as recruiter and public information officer in administration. (Faulk’s Complaint,
Rec .Doc. 1 at ¶ 20(a)). Duplantis then moved Faulk to a uniformed patrol car and made him
work the night shift. (Id.). Faulk claims that Duplantis, under the supervision of Claudet, took
these actions against him in retaliation for his protected speech about HB106.
Faulk’s causes of action are based on theories of First Amendment retaliation,
respondeat superior, and constitutional violations inflicted through official custom and
policy. (Id. at 12, 14, & 15).
Wolfe’s Allegations
Wolfe is a captain in the Houma Police Department with over 28 years of service.
Wolfe alleges that on April 24, 2012, which was only two business days after counsel’s email,
Duplantis removed Wolfe from his administrative position and placed him on a rotating
night shift. (Wolfe’s Complaint, Rec .Doc. 1 at ¶ 19(a)). Wolfe contends that on May 7, 2012, a
supervisory note was placed in his personnel file without his knowledge. (Id. ¶ 19(e)). Then
on May 15, 2012, Duplantis wrote Wolfe up for filling out an incorrect timesheet. (Id. ¶ 19(g)).
On May 22, 2012, Duplantis wrote Wolfe up once again, this time for failing to show up for an
3
off-duty detail. (Id. at 19(h)).3 Wolfe claims that Duplantis, under the supervision of Claudet,
took these actions against him in retaliation for his protected speech about HB106 and
because his name was specifically mentioned in counsel’s email. (Id. at ¶ 20).
Wolfe’s causes of action are based on theories of First Amendment retaliation,
respondeat superior, and constitutional violations inflicted through official custom and
policy. (Id. at 12, 14, & 15).
Defendants have now filed numerous dispositive motions, which the Court addresses
in detail below.
II.
DISCUSSION
A.
Governing Standards
In the context of a motion to dismiss the Court must accept all factual allegations in
the complaint as true and draw all reasonable inferences in the plaintiff’s favor. Lormand v.
US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (citing Tellabs, Inc. v. Makor Issues &
Rights, Ltd., 551 U.S. 308 (2007); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Lovick v.
Ritemoney, Ltd., 378 F.3d 433, 437 (5th Cir. 2004)). However, the foregoing tenet is
inapplicable to legal conclusions. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). Thread-bare
recitals of the elements of a cause of action, supported by mere conclusory statements, do not
suffice. Id. (citing Bell Atlantic Corp. v. Twombly, 550, U.S. 544, 555 (2007)).
The central issue in a Rule 12(b)(6) motion to dismiss is whether, in the light most
favorable to the plaintiff, the complaint states a valid claim for relief. Gentilello v. Rege, 627
Wolfe does not dispute that the incidents on May 15 and 22, 2012, did in fact occur but
rather suggests that Duplantis was looking for a reason to write him up, and that Duplantis was
treating Wolfe more harshly than other officers committing similar infractions. (Wolfe’s
Complaint, Rec. Doc. 1 at ¶¶ 19(g), (h)).
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F.3d 540, 544 (5th Cir. 2010) (quoting Doe v. MySpace, Inc., 528 F.3d 413, 418 (5th Cir.
2008)). To avoid dismissal, a plaintiff must plead sufficient facts to “state a claim for relief
that is plausible on its face.” Id. (quoting Iqbal, 129 S. Ct. at 1949). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court
does not accept as true “conclusory allegations, unwarranted factual inferences, or legal
conclusions.” Id. (quoting Plotkin v. IP Axess, Inc., 407 F.3d 690, 696 (5th Cir. 2005)). Legal
conclusions must be supported by factual allegations. Id. (quoting Iqbal, 129 S. Ct. at 1950).
Summary judgment is appropriate only if "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any," when viewed in
the light most favorable to the non-movant, "show that there is no genuine issue as to any
material fact." TIG Ins. Co. v. Sedgwick James, 276 F.3d 754, 759 (5th Cir. 2002) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986)). A dispute about a material
fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the
non-moving party. Id. (citing Anderson, 477 U.S. at 248). The court must draw all justifiable
inferences in favor of the non-moving party. Id. (citing Anderson, 477 U.S. at 255). Once the
moving party has initially shown "that there is an absence of evidence to support the nonmoving party's cause," Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986), the non-movant
must come forward with "specific facts" showing a genuine factual issue for trial. Id. (citing
Fed. R. Civ. P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986)).
Conclusional allegations and denials, speculation, improbable inferences, unsubstantiated
assertions, and legalistic argumentation do not adequately substitute for specific facts
showing a genuine issue for trial. Id. (citing SEC v. Recile, 10 F.3d 1093, 1097 (5th Cir.
5
1993)).
B.
42 U.S.C. § 1983 First Amendment Retaliation Claims
To prove a claim of First Amendment retaliation, a plaintiff must establish that 1) he
suffered an “adverse employment decision”; 2) his speech involved a matter of “public
concern”; 3) his interest in commenting on matter of public concern outweighs the
defendant’s interest in promoting efficiency; and 4) his speech motivated the adverse
employment decision. Haverda v. Hays County, No. 12-51008, 2013 WL 3753964, at *4 (5th
Cir. July 17, 2013) (quoting Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir.
2001)). Once a plaintiff has met his burden of showing that his protected speech was a
substantial or motivating factor in the defendant’s adverse employment decision, a defendant
may still avoid liability by showing, by a preponderance of the evidence, that he would have
taken the same adverse employment action even in the absence of protected speech. Id.
(citing Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)). An
employee can, however, refute that showing by presenting evidence that “his employer’s
ostensible explanation for the discharge is merely pretextual.” Id. (quoting Coughlin v. Lee,
946 F.2d 1152, 1157 (5th Cir. 1991)). The movant for summary judgment in a First Amendment
retaliation case faces a difficult burden because cases that involve determinations regarding
intentions or motive are ill-suited for summary adjudication. Id. (citing Beattie, 254 F.2d at
600).
1.
Faulk v. Duplantis & Claudet (individually)
a.
The Parties’ Positions
Faulk alleges that Duplantis retaliated against him for speaking out against HB106.
The sole act of retaliation that Faulk alleges in his complaint is that on April 24, 2012,
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Duplantis transferred him from his position as a recruiter and public information officer in
administration to a uniformed car patrol working nights. (Faulk’s Complaint, Rec .Doc. 1 at ¶
20(a)). Faulk points out that this move occurred just two days after the missive that Plaintiff’s
counsel circulated around Terrebonne Parish, thereby suggesting that this email motivated
Duplantis to transfer Faulk. (Id. at ¶ 20.).
Defendants move to dismiss Faulk’s First Amendment retaliation claim arguing the
obvious: That Faulk’s allegations do not state a claim for First Amendment retaliation
because 1) the protected speech that allegedly motived the transfer to the uniformed night
patrol was not Faulk’s speech but rather was Plaintiffs’ counsel’s speech, and therefore
Faulk’s First Amendment rights are not implicated; and 2) that while Faulk does allege two
acts of protected speech of his own in conjunction with HB106, the transfer to uniformed
patrol—again, the only pleaded “adverse employment decision”—occurred prior to those acts
of protected speech. Further, Defendants argue that the transfer to uniformed night patrol,
which involved no decrease in pay or rank, was not an “adverse employment decision” under
the law of this circuit. (Rec. Doc.34, Defendants’ Motion to Dismiss—Faulk).
In the event that the complaint survives dismissal at the pleading stage, Defendants
have also moved for summary judgment on Faulk’s First Amendment retaliation claim.
Defendants again re-urge their contention that the transfer was not an “adverse employment
decision,” and that Faulk’s characterization of it as such is nothing but Faulk’s subjective
belief that the night patrol car position was beneath him. Defendants also move for summary
judgment on the issue of motivation for the transfer. Defendants contend that Duplantis has
provided sound reasoning for his decision to transfer Faulk to the uniformed car patrol
assignment. Finally, both Duplantis and Claudet move for summary judgment in their favor
7
on the defense of qualified immunity.
In opposition to the motion to dismiss, Faulk argues that Rule 8 does not require that
he plead with specificity every act of retaliation that occurred, and therefore, his complaint is
not subject to dismissal simply because the chronology of the sole act of retaliation that he
does allege does not support his claim for First Amendment retaliation. In opposition to the
motion for summary judgment, Faulk includes an affidavit citing other acts—acts not pleaded
in his complaint—that he believes were retaliatory and that fit the chronology of his own acts
of protected speech. On the issue of whether any acts of alleged retaliation were motivated by
Faulk’s protected speech, Faulk relies on the implications of the time-line of events contained
in his affidavit, and the inferences of retaliation that can be drawn from the chronology of
those events. (Rec. Doc. 44, Faulk’s MSJ Opposition at 8).
Regarding whether Faulk suffered an “adverse employment decision,” Faulk admits
that the transfer was inter-positional in nature, and not a demotion, reduction in position,
suspension, or dismissal.4 (Rec. Doc. 45, Faulk’s MTD Opposition at 4). Faulk argues,
however, that his original position was more prestigious than uniform patrol, the working
hours were better and more desirable, and the job was more interesting and fulfilling. (Rec.
Doc. 44, Faulk’s MSJ Opposition at 8). Faulk also contends that uniform patrol duty is
Faulk doesn’t just admit these aspects of the transfer, he argues them in response to
Defendants’ contention that state civil service rules required Faulk to exhaust his administrative
remedies prior to filing this lawsuit. Faulk need not have tried so hard to refute that argument
because it lacks merit as a matter of federal law. A plaintiff’s ability to bring suit against a state
actor under § 1983 for vindication of a federal right is not subject to state law rules of
administrative exhaustion. Patsy v. Bd. of Regents of State of Fla., 457 U.S. 496, 516 (1982).
And state civil service classifications of the employment decision do not control whether or not it
constitutes an adverse employment decision under federal law. See Serna v. City of San Antonio,
244 F.3d 479, 482-83 (5th Cir. 2001). Moreover, the state law immunities that Defendants invoke
in their motions do not provide a defense to the federal claims because federal law governs the
scope of a § 1983 claim. See Howlett v. Rose, 496 U.S. 356, 376 (1990).
4
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universally considered a form of punishment within the department. (Id.).
b.
Motion to Dismiss
Turning first to the motion to dismiss, Defendants correctly point out that Faulk
cannot ground his retaliation claim on Plaintiffs’ counsel’s April 19, 2012 email because that
email does not implicate Faulk’s First Amendment rights. Nonetheless, in his complaint
Faulk specifically alleged that this email motivated Duplantis to transfer him to night patrol.
Faulk only alleges one specific instance of his own speech regarding HB106—his appearance
at the senate committee meeting on May 10, 2012—but that occurred after the transfer.
Rule 8 may require only “a short and plain statement of the claim” in order to avoid
dismissal under Rule 12(b)(6), but that statement must nonetheless demonstrate that the
pleader is entitled to relief. Fed. R. Civ. Pro. 8(a)(2). Rule 8(a) may forgive a plaintiff’s lack of
factual particularity when pleading his case but the plaintiff must nonetheless plead all of the
essential elements of his case, and he must include enough factual detail to give the claim
facial plausibility. See Gen. Elec. Cap. Corp. v. Posey, 415 F.3d 391, 396-97 (5th Cir. 2005).
For this reason, the Court cannot agree with Faulk’s contention that Rule 8(a) is so
relaxed that he need not plead the specific acts of retaliation upon which he bases his claim
for relief. Defendants cannot defend a retaliation case that behaves as a moving target. The
only act of retaliation that Faulk pleaded was the transfer to the uniformed night patrol car
position. Faulk’s claim for First Amendment retaliation is therefore limited to that specific
employment action, and he cannot expand his complaint with new causes of action by
submitting an affidavit that describes other acts that he believes to be retaliatory.5
The Court is persuaded that none of the other allegedly retaliatory acts mentioned in
Faulk’s affidavit would be actionable as “adverse employment decisions” anyway. But those
other acts, while not actionable on their own, are not irrelevant because they could constitute
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The more convincing argument for Faulk, and the one that the Court assumes he was
trying to articulate in his opposition to the motion to dismiss, is that his First Amendment
retaliation claim need not be dismissed based on Faulk’s failure to plead with particularity
every instance prior to the transfer when he spoke out in opposition to HB106. Faulk alleged
that he was retaliated against, i.e., transferred to night patrol, because of his protected speech
about HB106. (Rec. Doc. 1, Faulk’s Complaint ¶ 20). Rule 8(a)(2)’s requirement of a short
and plain statement is satisfied notwithstanding the lack of factual specificity as to when
Faulk spoke out.6
c.
Motion for Summary Judgment-Adverse Employment
Decision
Defendants’ next argument is that under the law of this circuit the transfer to the night
patrol does not constitute an adverse employment decision. Adverse employment decisions
can include discharges, demotions, refusals to hire, refusals to promote, and reprimands.
Sharp v. City of Houston, 164 F.3d 923, 933 (5th Cir. 1999) (citing Benningfield v. City of
Houston, 157 F.3d 375 (5th Cir. 1998); Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997);
Southard v. Tex. Bd. of Crim. Just., 114 F.3d 539, 555 (5th Cir. 1997); Pierce v. Tex. Dept. of
Crim. Just., 37 F.3d 1146, 1149 (5th Cir. 1994)). The law in this circuit recognizes that a
transfer may under certain circumstances constitute an adverse employment action even
where it does not carry with it a decrease in pay. Serna, 244 F.3d at 482. A transfer is not
circumstantial evidence that helps Faulk to prove that retaliation motivated the transfer to the
night patrol position.
Another factor militating against the Court granting Defendants any relief under Rule
12(b)(6) is that they waited until nearly the eve of trial to complain about pleading deficiencies
that were immediately apparent from the face complaint. Rule 12(b)(6) specifically states that a
motion challenging the complaint based on the failure of the factual allegations to state a claim
must be filed before the answer is filed lest the defense be waived.
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actionable when its adverseness is based solely on the plaintiff’s preference for one position
over the other. See id. But under certain circumstances the plaintiff can demonstrate that a
transfer is so deleterious as to make it in essence a demotion. Id. Thus, where the plaintiff is
transferred into a job that is less prestigious, less interesting, subject to less attractive work
hours, and generally considered as a form of “punishment” in that particular workplace, a
transfer can be actionable as an “adverse employment decision.” See, e.g., Forsyth v. City of
Dallas, 91 F.3d 769, 774 (5th Cir. 1996); Click v. Copeland, 970 F.2d 106, 110 (5th Cir. 1992).
Faulk has clearly created an issue of fact under the law of this circuit as to whether the
transfer to the night patrol was in essence a demotion, and therefore constitutes an “adverse
employment decision,” versus an ordinary transfer. Faulk submitted the deposition
testimony of numerous other employees of the Houma Police Department, all of whom
opined that in the department transfer to the night patrol was viewed as punishment. Faulk
contends that the position that he had before the transfer was objectively better than the
night patrol position because he went from working an 8:00 a.m. to 4:30 p.m. desk job to
working twelve hour shifts that alternate between days and nights. (Rec. Doc. 44-3, Exh. A to
Faulk’s MSJ Opposition). Faulk also contends that the night patrol position has impacted his
ability to work outside details and therefore to earn extra money. The law in the circuit could
not be clearer in that the transfer need not be accompanied by a reduction in compensation.
Defendants are not entitled to either dismissal or summary judgment on the issue of whether
the transfer constituted an “adverse employment decision.”
d.
Motion for Summary Judgment-Retaliatory Motive
Duplantis, in his capacity as Chief of Police, is the individual who made the decision to
transfer Faulk to the night patrol, and he is the individual who carried out that decision.
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Duplantis moves for summary judgment on the motivation issue arguing that he has
provided sound reasoning for transferring Faulk into the night car patrol assignment. (Rec.
Doc. 35-1, Defendants’ MSJ—Faulk at 7). In support of his motion for summary judgment
Duplantis submitted an affidavit. The affidavit does not mention or allude to Duplantis’s
reasons for transferring Faulk. (Rec. Doc. 35-3, Exh. A to Defendants’ MSJ—Faulk).
Defendants have submitted as Exhibit C to their motion an untitled two-page deposition
excerpt that the Court surmises to be Duplantis’s testimony. (Rec. Doc. 35-3, Exh. C to
Defendants’ MSJ—Faulk). This testimony excerpt briefly states why Duplantis moved
another employee out of the night patrol position that Faulk ultimately came to occupy.
Faulk has created an issue of fact as to whether his protected speech regarding HB106
was a motivating factor in the decision to transfer him to the uniformed night patrol. But
nothing in the evidence of record adequately explains why Duplantis made the decision to
transfer Faulk into the uniformed night patrol. This case requires a determination regarding
motive or intention and only the jury can make this determination. Duplantis is not entitled
to summary judgment on Faulk’s First Amendment retaliation claim.
e.
Motion for Summary Judgment-Qualified Immunity
Duplantis contends that he is entitled to qualified immunity because a police chief in
his position would have no way of knowing that transferring one sergeant in and one sergeant
out of car patrol would amount to an unlawful act. (Rec. Doc. 35-1, Defendants’ MSJ—Faulk
at 11).
A qualified immunity defense requires two points of analysis: 1) Did the defendant
violate the plaintiff’s constitutional rights, and 2) if a violation occurred then were the
defendant’s actions objectively unreasonable in light of clearly established law at the time of
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the conduct in question? Whittington v. Maxwell, 455 Fed. Appx. 450, 456 (5th Cir. 2011)
(unpublished) (quoting Freeman v. Gore, 483 F.3d 404, 410 (5th Cir. 2007)).
Of course, simply transferring one sergeant into the position of another is not an
unlawful act in and of itself. But if the transfer constitutes an “adverse employment decision,”
and if it was carried out in retaliation for engaging in protected speech, then it was unlawful.
A reasonable officer in Duplantis’s position should have known that if he took an adverse
employment action in retaliation against an employee for exercising his First Amendments
rights then that would be unlawful and subject him to liability. It is beyond cavil that the law
in this circuit was clearly established on this point when the alleged retaliatory act occurred
in this case. Click, 970 F.2d at 111. Duplantis is not entitled to summary judgment on his
defense of qualified immunity.
In sum, for all of the foregoing reasons, the motion to dismiss and for summary
judgment is DENIED as to the First Amendment retaliation claim asserted against Duplantis
in his personal capacity.
f.
Faulk’s Claims Against Claudet
Faulk fails to allege a claim against Claudet under federal law in his personal capacity.
The sole allegation with respect to Claudet vis à vis the First Amendment retaliation claim is
that Duplantis was acting under the supervision of Claudet when he retaliated against Faulk
by transferring him to the night patrol. (Rec. Doc. 1, Faulk Complaint ¶ 20). Assuming the
truth of this allegation, the law is well-settled in that § 1983 does not allow for supervisory
liability based on principles of respondeat superior. See, e.g., Estate of Davis v. City of N.
Richland Hills, 406 F.3d 375, 381 (5th Cir. 2005).
But even if the allegations in the complaint were sufficient to state a claim against
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Claudet individually, the record on summary judgment makes clear that Faulk cannot
establish a First Amendment claim against Claudet in his personal capacity. Faulk has
provided the testimony of several members of the Houma Police Department that he believes
makes abundantly clear that Duplantis acted upon the advice and permission of Michel
Claudet in retaliating against him. (Rec. Doc. 44, Faulk’s MSJ Opposition at 9).
To the contrary, the deposition transcripts indicate that several employees believed
that another employee, Ms. Wedgeworth, had overheard a conversation between Duplantis
and Claudet regarding retaliation. But Ms. Wedgeworth, who was apparently Duplantis’s
secretary, clarified that what those other employees were referring to was her discomfiture
with Claudet calling Pat Theriot, the current president of the Houma Police Association, and
attempting to discourage him from going before the legislature concerning HB106. (Rec. Doc.
44-13, Exh. K to Faulk’s MSJ Opposition). Wedgeworth testified that Duplantis said
something to the effect that Claudet would support whatever he did but she assumed that this
conversation involved Theriot. (Id.).
The record is simply devoid of evidence sufficient to create an issue of fact regarding
liability against Claudet in his personal capacity for a violation of Faulk’s First Amendment
rights. Claudet is entitled to judgment as a matter of law on Faulk’s claim of First
Amendment retaliation.
2.
Wolfe v. Duplantis & Claudet (individually)
a.
The Parties’ Positions
Wolfe’s complaint is nearly identical to Faulk’s in that he is asserting a claim for First
Amendment retaliation based on his opposition to HB106. In contrast to Faulk who voiced
his opposition to HB106 in a very public manner, Wolfe alleges that he communicated his
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opposition to his fellow officers, and that the views of the Houma Police Association
expressed collectively included his viewpoint. (Rec. Doc. 1, Wolfe’s Complaint ¶ 20). Similar
to Faulk, Wolfe contends that he was retaliated against after Plaintiff’s counsel circulated the
April 19, 2012 email, which specifically named Wolfe as being a minority who could be
adversely affected by HB106. (Id.). Wolfe alleges several acts that he contends were
retaliatory but Wolfe’s chief complaint is that Duplantis removed him from an 8: 00 a.m. to
4:00 p.m. / Monday through Friday shift, and placed him on a rotating night shift with
another captain. (Id. ¶ 19(a)). Additionally, Wolfe alleges that Duplantis put a supervisory
note in his personnel file, and issued two Written Records of Counsel, for errors that Wolfe
does not dispute occurred. (Id. ¶¶ 19(e), (g), (h)).
Defendants move for dismissal and summary judgment on Wolfe’s claims. Defendants
argue that Wolfe’s conversations to fellow officers, which is the only speech alleged, is not
“protected speech” for purposes of a First Amendment retaliation claim. Defendants also
argue that the complaint fails to allege and the evidence fails to establish that Duplantis even
knew about Wolfe’s conversations with his co-workers regarding HB106, thereby creating a
failure on the issue of causation/motivation. Finally, Defendants argue that none of the
alleged acts of retaliation constitute an “adverse employment decision” under federal law.
In opposition to the motions, Wolfe argues that his speech to fellow officers regarding
HB106 was protected speech and that the retaliatory acts that he alleges were “adverse
employment decisions.”
b.
Motion for Summary Judgment
Assuming arguendo that Wolfe successfully pleaded a First Amendment retaliation
claim, the evidence of record demonstrates that Wolfe cannot prove his claim. Wolfe cannot
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meet his initial burden of showing that his own protected speech was a substantial or
motivating factor in any acts taken against him.7 With respect to the speech at issue, Wolfe
states in his affidavit that he “engaged in protected speech by informing members of the
department, members of the public, and members of the Houma Police Association of [his]
opposition to HB106.”8 (Rec. Doc. 43-2, Exh. A-1 to Wolfe’s MSJ Opposition ¶ 2). Two crucial
pieces of information are missing from Wolfe’s case. First, there is no indication of when
Wolfe made these statements so they very well could have been made after the adverse
actions were taken against him. And unlike Faulk, who was very high profile in the cause and
demonstrated a consistent and continuous course of public opposition to HB106, the only
speech regarding HB106 that Wolfe can claim are the private discussions with his coworkers. Second, and perhaps even more fatal to his claim, nothing in the record suggests
that Duplantis knew about the private conversations that Wolfe had with co-workers when he
expressed his opposition to HB106.
Wolfe’s deposition testimony only serves to further demonstrate that he cannot prove
a causal connection between any “protected speech” and any acts that Duplantis allegedly
took against him. Wolfe testified that he believed that it was Plaintiffs’ counsel’s email—an
email that cited Wolfe as an employee who would be adversely affected by HB106 because of
his minority status—that prompted Duplantis to retaliate. (Rec. Doc. 36-3, Defendants
MSJ—Wolfe at 17). Wolfe admits that he never talked to Duplantis about HB106 but that
The Court assumes without deciding that Wolfe’s conversations with his co-workers
were “protected speech” and that the acts taken against him were “adverse employment actions.”
7
Wolfe’s opposition also refers to an Exhibit A that was intended to be his deposition but
that exhibit was not included with the motion as filed. (Rec. Doc. 43, Wolfe’s MSJ Opposition at
4 n.7). Defendants, however, included the relevant portions of Wolfe’s deposition with their
filing so the Court used that copy.
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word simply gets around the office. (Id. at 21). In fact, Wolfe could cite to no evidence at all
that would indicate that Duplantis knew about his position with respect to HB106. (Id. at 22).
In other words, Wolfe is simply surmising that someone probably told Duplantis about
Wolfe’s personal opinions regarding HB106.
In sum, Duplantis is entitled to judgment as a matter of law on Wolfe’s First
Amendment retaliation claim under 42 U.S.C. § 1983.
c.
Wolfe’s Claims Against Claudet
For the reasons explained above, Wolfe cannot establish a violation of any right.
Claudet is entitled to judgment as a matter of law on Wolfe’s claim of First Amendment
retaliation.
C.
42 U.S.C. § 1983 Official Custom and Policy Claims
a.
Faulk
Official capacity suits against an individual are really suits against the governmental
entity that the official serves. Goodman v. Harris Cnty., 571 F.3d 388, 396 (5th Cir. 2009).
Because no party has alluded to the specific governmental entity implicated by the official
capacity claims against Duplantis and Claudet, the Court will assume that TPCG, which is
already a named defendant, is the proper entity. Therefore, the analysis regarding the official
capacity claims against Duplantis and Claudet, and the analysis regarding the claims against
TPCG, collapse into a single Monell inquiry.
It is well-settled that a city or municipality is not liable under § 1983 on the theory of
respondeat superior. Peterson v. City of Fort Worth, 588 F.3d 838, 847 (2009) (citing
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). A plaintiff seeking to impose
liability on a municipality under § 1983 must show that there was either an official policy or
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an unofficial custom, adopted by the municipality, that was the moving force behind the
claimed constitutional violation. Duvall v. Dallas Cnty, 631 F.3d 203, 209 (5th Cir. 2011)
(citing Monell, 436 U.S. at 694). A municipality is almost never liable for an isolated
unconstitutional act on the part of an employee but rather is liable only for acts directly
attributable to it “through some official action or imprimatur.” Peterson, 588 F.3d at 847
(quoting Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001)). Official policy,
which establishes potential liability for a municipality, can exist not only as a formal written
policy statement but also in the form of widespread practice that is “so common and wellsettled as to constitute a custom that fairly represents municipal policy.” Id. (quoting
Piotrowski, 237 F.3d at 579). A policy or custom is official only “when it results from the
decision or acquiescence of the municipal officer or body with ‘final policy making authority’
over the subject matter of the offending policy.” Id. (quoting Jett v. Dallas Indep. Sch. Dist.,
491 U.S. 701, 737 (1989)). There is no “de facto” final policy making authority so the plaintiff
must show that the policy was promulgated by the municipality’s policymaker. Id. (quoting
Gros v. City of Grand Prairie, 181 F.3d 613, 616 n.2 (5th Cir. 1999)). State law will always be
the sole determinate of which official or body has the responsibility for making law or setting
policy in any given area of a local government’s business. Gros, 181 F.3d at 616 (quoting City
of St. Louis v. Praprotnik, 485 U.S. 112, 124-25 (1988)).
Duplantis, the governmental actor who effected the employment decision that forms
the basis of Faulk’s First Amendment retaliation claim, is not a final policymaker for TPCG.
Faulk’s claims against Duplantis in his official capacity are therefore dismissed.
Claudet, as Parish President, is clearly a final policy maker for TPCG. See Parish of
Terrebonne Home Rule Charter, art. III, § 3-01, et seq. But as explained above, the record is
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devoid of any evidence that suggests that Claudet was personally involved in the decision to
transfer Faulk to the uniformed night patrol position.
Moreover, Plaintiffs never concretely identify an actual TPCG policy that calls for First
Amendment retaliation against parish employees. Instead, Faulk seems to be relying on the
“widespread practice” application of policy or custom. (Rec. Doc. 1, Faulk’s Complaint ¶ 22).
But the only other instance of First Amendment retaliation suggested by Faulk is Wolfe’s
case, which again fails on its proof. Faulk cites to the experiences of retired Captain Greg
Hood but the allegation is that Faulk’s case is reminiscent of Hood’s case because Duplantis
assigned him to the night shift in order to force him out of the department. (Id. ¶ 20(c)).
Nothing in Hood’s deposition testimony suggests that he believed that Duplantis reassigned
him to night patrol as retaliation for exercising First Amendment rights, or more importantly
that Claudet, as final policy maker, was involved. (Rec. Doc. 44-8, Exh. F to Faulk’s MSJ
Opposition). Even if Faulk has established that Duplantis has a policy of punishing officers by
assigning them to the night patrol, this does not help him to reach TPCG in his case because
Duplantis is not the final policy maker for TPCG and the only policy of relevance is one of
retaliating for exercising First Amendment rights. Faulk has failed to create an issue of fact as
to the question of whether his constitutional injury, should he prevail in proving one, was
caused by an official policy or custom of TPCG. Claudet in his official capacity and TPCG are
entitled to judgment as a matter of law.
b.
Wolfe
Duplantis in his official capacity, Claudet in his official capacity, and TPCG are
entitled to judgment as a matter of law on Wolfe’s claims because Wolfe has not
demonstrated the denial of any federal constitutional right. See Zarnow v. City of Wichita
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Falls, 614 F.3d 161, 166 (5th Cir. 2010).
D.
Respondeat Superior / Vicarious Liability
Plaintiffs concede that § 1983 does not provide for liability under the theory of
respondeat superior. (Rec. Doc. 47, Plaintiffs’ MTD Opposition at 10). All claims asserted
under this theory of liability are therefore dismissed.
E.
Due Process Claims
Faulk and Wolfe allege that they were denied due process by the passage of HB106
because they can no longer compete based on the merits of their work for the chief’s position
should they decide to do so. (Rec. Doc. 1, Faulk’s and Wolfe’s Complaints at ¶ 31; Faulk’s
Complaint ¶ 21).
A claim for procedural due process requires state action that deprives an individual of
a property interest employing procedures that were unconstitutional. McClure v. Biesenbach,
355 Fed. Appx. 800, 805 (5th Cir. 2009) (unpublished) (citing Ky. Dep’t of Corr. v.
Thompson, 490 U.S. 454, 460 (1989)).
The due process clause contains a substantive component that bars certain arbitrary,
wrongful government actions “regardless of the fairness of the procedures used to implement
them.” Zinermon v. Burch, 494 U.S. 113, 125 (1990) (quoting Daniels v. Williams, 474 U.S.
327, 331 (1986)). Analysis of a substantive due process claim requires the court to focus on
the allegations of the complaint to determine how the plaintiff describes the constitutional
right at stake and what the municipality did to deprive the plaintiff of that right. Collins v.
City of Harker Heights, 503 U.S. 115, 125 (1992). The due process clause precludes the state
from depriving individuals of property without due process of law but it does not impose an
affirmative obligation on the state to ensure that those interests do not come to harm through
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other means. Id. (quoting DeShaney v. Winnebago County Dept. of Soc. Servs., 489 U.S.
189, 195 (1989)). A government employee alleging a due process claim in connection with an
employment action must also assert a property interest in continued employment. Holder v.
Knight, 155 Fed. Appx. 735, 739 (5th Cir. 2005) (citing Cabrol v. Town of Youngsville, 106
F.3d 101, 105 (5th Cir. 1997)).
As the Court appreciates Plaintiffs’ due process claims, Plaintiffs believe that the
enactment of La. R.S. § 33:2481.3, and the more recent passage of HB106, violated their right
to procedural due process because the legislature enacted § 33:2481.3 in contravention of the
state constitution and the state rules of civil service. Even if this is true, Plaintiffs fail to make
any type of convincing argument as to how TPCG, or any defendant in this case for that
matter, would be liable for the passage of an act of the state legislature, which was later
approved by the state’s executive. Even if Claudet personally lobbied Representative Dove to
present HB106 to the legislature, neither Claudet nor TPCG violated any procedural due
process right owed to Plaintiffs. Plaintiffs’ belief that they can hold any of the local
defendants liable for exercising their own First Amendment rights in supporting acts that
other parties enacted into state law, is not supported by any law of which this Court is aware
and Plaintiffs cite to none. Moreover, the Court knows of no authority to suggest that a
plaintiff in either Faulk’s or Wolfe’s position suffers a federal procedural due process injury
when a state law violates the state constitution.
The basis for Plaintiffs’ substantive due process claim is even less clear because the
only rights that they allege were implicated by the passage of HB106 are state law rights.
Plaintiffs believe that they possess a constitutionally protected right to compete for the
position of chief but they offer no legal authority for that assertion. The sin qua non of any
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due process claim is a property right but Plaintiffs have not shown that they had any property
rights in the chief’s position. Their statements regarding their rights with respect to this
position are conclusory, speculative, and uttered without citation to the specific state law that
vested some property right in them. But assuming arguendo that Plaintiffs somehow did have
a property right with respect to the chief’s position, they fail to make the connection between
that property right, an act of the Louisiana Legislature that allegedly deprived them of that
property right, and the local defendants named in this lawsuit.
Defendants are entitled to judgment as a matter of law on Plaintiffs’ due process
claims.
III.
CONCLUSION
Based on the foregoing, the only claim that remains for trial on December 9, 2013, is
Faulk’s claim of First Amendment retaliation based on Duplantis’s decision to transfer Faulk
to the uniformed night patrol. The case will proceed against Duplantis in his personal
capacity only. All claims asserted against Claudet and TPCG, and the official capacity claims
against Duplantis are DISMISSED.
Wolfe’s complaint is DISMISSED in is entirety.
Faulk recognizes that both this Court and the magistrate judge have had difficulty
identifying the exact nature of the causes of action asserted. (Rec. Doc. 47, Plaintiffs’ MTD
Opposition at 1). The only causes of action that Faulk alleged were for First Amendment
retaliation and due process, under 42 U.S.C. § 1983, with concomitant Monell claims asserted
against the municipality based on those alleged violations. The difficulty in identifying the
exact nature of the causes of action stems from the discursive montage of allegations regarding
HB106, Duplantis’s qualifications to be chief, the state legislature’s action in changing the law
22
regarding the chief’s position, and civil service rules, none of which have any implications for any
federal right. Plaintiffs are therefore forewarned that issues pertaining to Duplantis’s
appointment as chief, including the legality of his appointment under state law, and the
validity of La. R.S. § 33:2481.3 will not be tried in this case because they are irrelevant to
Faulks’s claim under 42 U.S.C. § 1983.
Accordingly;
IT IS ORDERED that the Motion to Dismiss Faulk’s Complaint (Rec. Doc.
34) is DENIED;
IT IS FURTHER ORDERED that the Motion for Summary Judgment on
Faulk’s First Amendment Retaliation and Custom/Policy Claims (Rec. Doc. 35) is
GRANTED IN PART AND DENIED IN PART as explained above;
IT IS FURTHER ORDERED that the Motion for Summary Judgment on
Wolfe’s First Amendment Retaliation and Custom/Policy Claims (Rec. Doc. 36)
is GRANTED;
IT IS FURTHER ORDERED that the Motion to Dismiss Wolfe’s Complaint
(Rec. Doc. 33) is DENIED AS MOOT;
IT IS FURTHER ORDERED that the Motion to Dismiss (Rec. Doc. 32) filed
by Defendants is GRANTED;
IT IS FURTHER ORDERED that in light of the foregoing, the Clerk is to issue a
judgment in Civil Action 12-1717 in favor of Defendants DISMISSING Wolfe’s complaint in
its entirety WITH PREJUDICE;
IT IS FURTHER ORDERED that in light of the foregoing, the Clerk is to DISMISS
the complaint in Civil Action 12-1714 as to all defendants except Todd M. Duplantis in his
23
individual capacity, with the final judgment in that case being issued following the jury trial
on the merits.
August 16, 2013
JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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