Maurer v. Independence Town
Filing
34
ORDER AND REASONS granting defendants' motions 8 13 and dismisses plaintiffs' claims against IVFD, Jeremy Baham, Eric Anthony, Jonathan Tallo, Christopher McKinney, Anthony Parrozzo, Michael Ragusa, and Independence without prejudice. P laintiff will be allowed fourteen (14) days from the date of this order to amend their complaint. Failure to timely amend the complaint will result in dismissal with prejudice.. Signed by Chief Judge Sarah S. Vance on 2/28/14. (Reference: BOTH CASES)(jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DAVID S. MAURER
CIVIL ACTION
VERSUS
NO: 13-5450
TOWN OF INDEPENDENCE,
LOUISIANA, MICHAEL A. RAGUSA,
NICHOLAS J. MUSCARELLO, CARLO
S. BRUNO, DENNIS CROCKER,
JEREMY BAHAM, ERIC ANTHONY,
JONATHAN TALLO, CHRISTOPHER
MCKINNEY, ANTHONY PARROZZO,
TANGIPAHOA PARISH RURAL FIFE
PROTECTION DISTRICT NO. 2,
AND INDEPENDENCE VOLUNTEER
FIRE DEPARTMENT, INC.
SECTION: R
ORDER AND REASONS
Defendants Independence Volunteer Fire Department, Inc.,
Jeremy Baham, Eric Anthony, Jonathan Tallo, Christopher McKinney,
Anthony Parrozzo, Michael Ragusa, and Town of Independence move
to dismiss plaintiff's claims against them pursuant to Federal
Rule of Civil Procedure 12(b)(6).1 Because plaintiff has failed
to state actionable claims against the moving defendants, the
Court GRANTS both motions to dismiss.
I.
BACKGROUND
Plaintiff David Maurer is a former employee of the
Independence Volunteer Fire Department. After he was terminated
from his position as fire chief of IVFD, he brought section 1983
1
R. Docs. 8, 13.
claims for procedural due process violations and state law claims
for violations of Louisiana's "Whistleblower Law" and defamation
of character against the following twelve defendants.2 Town of
Independence ("Independence") and Tangipahoa Rural Fire
Protection District Number 2 (TPD2) are political subdivisions of
the state of Louisiana.3 Michael Ragusa is the mayor of
Independence.4 Nicholas Muscarello and Carlo Bruno are members of
the Tangipahoa Parish Council and members of the Board of
Commissioners of TPD2, and Dennis Crocker is the administrator of
TPD2.5 Jeremy Baham, Eric Anthony, Jonathan Tallo, Christopher
McKinney, and Anthony Parrozzo are members of the board of
directors of IVFD, which is a private corporation that provides
fire protection services to Independence and the surrounding
area.6 Plaintiff has sued all of the individual defendants in
their individual and official capacities.
2
David S. Maurer v. Town of Independence, Louisiana et
al., No. 2:13-cv-05910, R. Doc. 1. The Court consolidated cases
13-5910 and 13-5450 on October 2, 2013. See R. Doc. 7. In the
lead case, No. 13-5450, plaintiff brings claims against
Independence for unpaid overtime wages, liquidated damages, and
attorneys' fees. See R. Doc. 1. Because the motions to dismiss
pertain only to No. 13-5910, the Court limits its focus in this
order to the complaint filed in that case.
3
David S. Maurer v. Town of Independence, Louisiana, No.
2:13-cv-05910, R. Doc. 1 at 4.
4
Id. at 3.
5
Id.
6
Id. at 4-5.
2
Plaintiff's complaint alleges the following facts.
A.
Plaintiff's Appointment and Early Tenure as Fire Chief
Plaintiff began working as a firefighter for the
Independence Fire Department (IFD) in October 2009.7 At the time,
IFD and IVFD jointly provided fire protection services for
Independence and the surrounding area.8 In September 2012,
Independence and TPD2 decided to close IFD and hire IVFD as the
exclusive provider of fire protection services for the area.9 The
firefighters employed by IFD were to be terminated and then
rehired to work for IVFD.10
After the municipality made this decision, Dennis Crocker,
the fire chief of IFD, became the administrator of TPD2.11
Crocker asked plaintiff to be the fire chief of IVFD under the
"new regime," and plaintiff accepted.12 In December, plaintiff
was officially confirmed as fire chief of Independence and of
IVFD, effective January 1, 2013.13
7
Id. at 4.
8
Id. at 5.
9
Id. at 5, 7.
10
Id. at 5.
11
Id. at 6.
12
Id.
13
Id. at 7-8.
3
Plaintiff's tenure as fire chief was marked by numerous
clashes with Crocker. One involved plaintiff's decision, made
soon after his appointment, to "change[] the way fire trucks
responded to emergency calls."14 Previously, all personnel on
duty and all available fire vehicles had responded to every call
as a matter of course, but plaintiff instituted a more flexible
system, "authoriz[ing] the officer in charge and on duty to make
the decision as to the appropriate response to each call."15
Crocker did not agree with plaintiff's decision, and, according
to the complaint, he "continued to act as if he had supervisory
authority over the plaintiff," "frequently [coming] to the
station and often call[ing] plaintiff telling plaintiff how to do
his job."16
On January 20, plaintiff learned that Crocker had been
"undermining plaintiff as Fire Chief" in conversations with other
firefighters.17 Plaintiff complained about Crocker's behavior to
Mayor Ragusa and Nicholas Muscarello, both of whom stated that
Crocker should not have been "interfering" with the management of
IVFD.18 According to the complaint, however, Crocker's
14
Id. at 9.
15
Id.
16
Id.
17
Id. at 13.
18
Id.
4
"interference" did not abate.19
Crocker and plaintiff also butted heads when plaintiff
discovered in January 2013 that Crocker had failed to pay several
of the fire department's bills during the last portion of his
tenure as fire chief.20 Several months later, a newspaper ran a
story about IVFD's failure to pay its bills.21 Crocker asked
plaintiff why he had contacted the media, but plaintiff responded
"that he was responding to a press inquiry and that he was not
going to lie to cover up what was being done to IVFD."22
Yet another conflict arose between Crocker and plaintiff
over plaintiff's refusal to hire Crocker's son, Andrew, at
IVFD.23 Plaintiff learned from the Board of Ethics that Andrew
could not work for IVFD because of his relationship with Crocker,
the administrator of TPD2.24 Crocker continued to "lobb[y]
plaintiff to employ Andrew" even after learning of the Board's
decision.25
Finally, Crocker and plaintiff clashed over plaintiff's
19
Id. at 14.
20
Id. at 12.
21
Id. at 17.
22
Id. at 17.
23
Id.
24
Id. at 16.
25
Id. at 17.
5
part-time employment with Hammond Rural Fire Department. In late
January, Crocker informed plaintiff that a complaint had been
lodged against him.26 The complaint apparently concerned
plaintiff's employment with the Hammond fire department;
plaintiff alleges that "Crocker told plaintiff that he could not
work part time for Hammond . . . and also be employed as chief of
IVFD."27 Plaintiff told Crocker that he would not make a decision
on the matter without speaking to an attorney, and Crocker later
told plaintiff "that everything had been worked out."28
Plaintiff also encountered conflicts with other town
officials that stemmed from a dispute about "compensatory time"
that plaintiff believed was owed to several firefighters. In
January 2013, after plaintiff had officially assumed his duties
as fire chief, he approached Mayor Ragusa about "unpaid
compensatory time owed to the firefighters who were formerly
employed by the Town of Independence."29 Ragusa originally
promised to "take care of it," but the issue ultimately went
unresolved.30 In April 2013, Ragusa definitively told plaintiff
26
Id. at 14.
27
Id. at 15.
28
Id.
29
Id. at 10.
30
Id. at 10-12.
6
that the town was not going to pay the compensatory time.31
In May 2013, plaintiff decided not to invite Ragusa or the
Independence Aldermen to IVFD's annual "safety meeting/crawfish
boil" because the firefighters were "upset with the Town
officials about the compensatory time issue."32 Ragusa and the
aldermen were not pleased with the snub. Ragusa intimated that
plaintiff's hiring as Fire Chief had created a significant amount
of hostility between IVFD and Independence, and one Alderman
stated that if the town intentionally failed to "make the next
payment," it could select a new fire chief.33
B.
TPD2's Investigation and Plaintiff's Subsequent Termination
On June 25, 2013, Ragusa sent a letter to TPD2 stating that
Independence intended to withhold money from IVFD because of
misconduct committed by plaintiff.34 On July 1, 2013, Carlo Bruno
and Crocker advised plaintiff of Ragusa's letter and told him
that TPD2 would investigate Ragusa's allegations.35 Bruno stated
that TPD2 would inform plaintiff by letter before the
investigation began, but upon plaintiff's return to the fire
31
Id. at 18.
32
Id. at 18.
33
Id. at 19.
34
Id. at 21.
35
Id. at 21-22.
7
station, he discovered Crocker there, pulling fire reports for
the investigation.36 After thus learning that the investigation
had commenced, plaintiff mailed a letter to TPD2 "refut[ing]
every allegation contained in Ragusa's letter."37
Crocker allegedly "made negative comments about plaintiff
for others to hear" during the time he spent at the station
conducting his investigation.38 Upon hearing of this, plaintiff
complained to Muscarello and stated that he was concerned that
Crocker could not be "fair and impartial" because plaintiff had
refused to hire Crocker's son at IVFD.39 Muscarello responded
that TPD2 would address plaintiff's concerns at the next board
meeting, but this solution was unsatisfactory to plaintiff,
because the investigation set to conclude before that meeting
occurred.40
Several days into the investigation, Crocker came to the
fire station unannounced and conducted an interview with
plaintiff.41 Crocker did not read plaintiff the Firefighter Bill
of Rights before the interview, nor did he record the
36
Id. at 22-23.
37
Id. at 23.
38
Id.
39
Id. at 24.
40
Id.
41
Id.
8
conversation.42 During the interview, Crocker asked plaintiff
about the allegations in Ragusa's letter, and plaintiff
"presented Crocker with documentation refuting" each of the
allegations.43 The complaint does not explicitly identify any of
these allegations, but it does state that the last allegation
concerned a check for $2,500 written by Austin Davis, a former
employee of IVFD.44 IVFD had paid $2,500 for Davis to attend the
LSU Firefighting School, conditional on Davis remaining employed
with IVFD for at least two years.45 Davis left before the two
years was up and accordingly refunded the tuition.46 Crocker, who
was still the IVFD fire chief at the time, had the money
deposited in the IVFD account, stating "that the funds were
originally budgeted for the fire department and if we give it
back to the town we will never see it again."47 In response to
Crocker's questioning about the $2,500 deposit, plaintiff showed
Crocker documentation proving that Crocker was the fire chief at
the time the deposit was made.48 Crocker, however, "refused to
42
Id.
43
Id. at 25.
44
Id.
45
Id.
46
Id. at 26.
47
Id.
48
Id.
9
take the documents with him."49
Plaintiff also alleges generally that "[o]ther events
occurred during Crocker's investigation which indicated that [it]
was not being conducted in a fair and impartial manner and that
some of the information being provided to Crocker was false."50
On July 18, 2013, a TPD2 committee met with Independence
officials to discuss the investigation of plaintiff.51 Five days
after that meeting, Anthony Parrozzo stated, "All we are going to
have to do is vote and he [plaintiff] is out as fire chief."52
According to the complaint, Parrozzo had designs on the office of
fire chief and wanted to use his close friendship with Crocker in
order to replace plaintiff in that position.53 On July 25, the
IVFD held a board meeting, and after the meeting the Board told
plaintiff that he would be placed on administrative leave, with
pay, pending the conclusion of the investigation.54 Jeremy Baham,
one of the members of the Board, told plaintiff that Bruno had
explained to the Board that Mayor Ragusa planned to withdraw
funding from IVFD and dissolve the corporation if plaintiff
49
Id.
50
Id. at 27.
51
Id. at 28.
52
Id.
53
Id. at 28-29.
54
Id. at 29.
10
remained fire chief.55
Plaintiff complained to Muscarello that he had never had an
opportunity to defend himself against Ragusa's allegations before
being placed on leave, but Muscarello declined to give plaintiff
any details about the ongoing investigation.56 On July 29,
following a meeting of the IVFD Board, plaintiff was terminated
from his position as fire chief.57
According to the complaint, the IVFD Board never produced a
written report of the results of the investigation that led to
plaintiff's termination.58 Two board members who were not at the
July 29 meeting requested such a report from the rest of the
Board, but they did not receive one.59 On July 31, plaintiff's
attorney unsuccessfully tried to arrange a meeting with officials
from TPD2 and Independence.60 Plaintiff's attorney then requested
a report of the investigation.61 Plaintiff and his attorney
eventually met with an attorney for TPD2 on September 4.62 At
55
Id. at 30.
56
Id. at 30-31.
57
Id. at 31-32.
58
Id. at 32.
59
Id.
60
Id. at 33.
61
Id.
62
Id.
11
that meeting, the TDP2 attorney stated that there was no report
from the investigation, and that Ragusa's allegations were not
the reason for plaintiff's termination.63 Instead, plaintiff had
been terminated because of three allegations, which the complaint
terms the "Speed allegations": (1) "plaintiff was only sending
two firefighters to fire calls;" (2) "IVFD was never short of
money; Crocker told TPD2 and IVFD had over $500,000.00
available;" and (3) "two fire engines were broken down for an
extended period of time."64 Plaintiff responded that the Speed
allegations were false.65 His complaint explains in some detail
precisely why he believes the allegations are untrue.66
C.
Plaintiff's Causes of Action
Plaintiff asserts four causes of action based on the
foregoing events. First, he claims that each of the defendants
deprived him of his employment without due process of law because
the investigation of plaintiff violated the Louisiana
Firefighters' Bill Of Rights, La. Rev. Stat. § 33:2181,67 and
because TPD2, Independence, and IVFD violated certain contractual
63
Id. at 34.
64
Id.
65
Id. at 34-36.
66
Id.
67
Id. at 36-39.
12
provisions that created a third-party benefit for firefighters.68
Second, plaintiff alleges a section 1983 "stigma-plusinfringement" claim against all defendants.69 Third, plaintiff
claims that Ragusa and Independence violated Louisiana's
"Whistleblower Law," La. Rev. Stat. § 23:967.70 Finally,
plaintiff alleges that Ragusa, Muscarello, Bruno, Parrozzo, and
Crocker defamed him.71
Defendants IVFD, Baham, Anthony, Tallo, McKinney, and
Parrozzo
(the "IVFD defendants"), now move to dismiss
plaintiff's claims against them under Rule 12(b)(6) for failure
to state a claim upon which relief can be granted.72 Mayor Ragusa
and Independence have also moved to dismiss for failure to state
a claim.73
II.
LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff
must plead enough facts to "state a claim to relief that is
plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678
68
Id. at 39-42.
69
Id. at 42-44.
70
Id. at 44-45.
71
Id. at 45-46.
72
R. Doc. 8.
73
R. Doc. 13.
13
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). A claim is facially plausible "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. A court must accept all well-pleaded facts as true
and must draw all reasonable inferences in favor of the
plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th
Cir. 2009).
A legally sufficient complaint need not contain detailed
factual allegations, but it must go beyond labels, legal
conclusions, or formulaic recitations of the elements of a cause
of action. Id. In other words, the face of the complaint must
contain enough factual matter to raise a reasonable expectation
that discovery will reveal evidence of each element of the
plaintiff's claim. Lormand, 565 F.3d at 257. If there are
insufficient factual allegations to raise a right to relief above
the speculative level, or if it is apparent from the face of the
complaint that there is an insuperable bar to relief, the claim
must be dismissed. Twombly, 550 U.S. at 555.
III. DISCUSSION
A.
Procedural Due Process Claim
The IVFD defendants contend that plaintiff's section 1983
claim against them are doomed at the threshold because their
14
conduct was not "state action" subject to section 1983. See
Frazier v. Bd. of Trustees, 765 F.2d 1278, 1283 (5th Cir. 1985)
(party asserting a section 1983 claim must show that his loss
"stemmed from conduct fairly attributable to the state"); see
generally Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n,
561 U.S. 288 (2001) (discussing the state action doctrine). The
Court need not decide this issue, however, because even assuming
that the IVFD defendants' conduct was "fairly attributable to the
state," plaintiff has failed to state a section 1983 due process
claim against any of the moving defendants.
When confronted with a procedural due process claim, a court
must determine, first, whether the plaintiff has a property or
liberty interest that cannot be taken away without procedural
protections; and second, if so, how much process is due. See
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985)
("[O]nce it is determined that the Due Process Clause applies,
'the question remains what process is due.'" (quoting Morrissey
v. Brewer, 408 U.S. 471, 481 (1972))). Plaintiff asserts that the
Due Process Clause applies here because he had a property
interest in his employment by reason of a state statute, the
Louisiana Firefighter Bill of Rights, and a contract among TPD2,
Independence, and IVFD. The Court finds no merit in plaintiff's
arguments that he has a property interest in his employment, and
therefore holds that plaintiff has failed to show that he was
15
entitled to any procedural protections before his termination.
1.
Violation of the Firefighter Bill of Rights
The Louisiana Firefighter Bill of Rights mandates that
certain "minimum standards" apply whenever a "fire employee" is
under investigation, La. Rev. Stat. § 33:2181(B), and provides
that "[a]ny discipline, demotion, dismissal or adverse action of
any sort taken against a fire employee without complete
compliance with the provisions of [the statute] is an absolute
nullity[.]" La. Rev. Stat. § 33:2181(C).
The Court finds that these provisions are not applicable to
plaintiff because he is not a "fire employee" within the meaning
of the statute. A "fire employee" is defined as "any person
employed in the fire department of any municipality, parish, or
fire protection district maintaining a full-time regularly paid
fire department, regardless of the specific duties of such person
within the fire department, and who is under investigation with a
view to possible disciplinary action, demotion, or dismissal."
La. Rev. Stat. § 33:2181(A)(1). Plaintiff was employed by IVFD, a
private corporation, not by Independence or Tangipahoa Parish.74
74
David S. Maurer v. Town of Independence, Louisiana et
al., No. 2:13-cv-05910, R. Doc. 1 at 4 (alleging that IVFD is a
"domestic corporation"); id. at 5 (alleging that plaintiff's
employment with Independence was terminated and he was then hired
by IVFD); see also R. Doc. 21-1 at 5 ("It is uncontradicted that
IVFD is a non-profit corporation which provides fire protection
services in certain designated areas of Tangipahoa Parish.").
16
Accordingly, under the plain terms of the statute, the
Firefighter Bill of Rights does not apply to plaintiff.
This conclusion is buttressed by comparing the above-quoted
statute with La. Rev. Stat. § 33:1991, which is contained
elsewhere in the Part of the Louisiana Revised Statutes entitled
"Fire Department." Section 33:1991 contains definitions for the
Subpart on minimum wages and maximum hours for firefighters, and
it provides as follows:
The word "fireman," as used in this Subpart includes all
persons employed or engaged full-time by municipalities
or municipal fire departments, parishes or parish fire
departments,
or
fire
protection
districts
for
firefighting or fire prevention duties and services, as
well as employees of nonprofit corporations under
contract with a fire protection district or other
political subdivision to provide such services, including
operators of the fire-alarm system when such operators
are members of the regularly constituted fire department.
The word "fireman" does not include carpenters,
storekeepers, machinists, clerks, building hazard and
similar inspectors, physicians, or other non-firefighting
employees detailed for such special duties, nor does the
word "fireman," except as otherwise provided in this
Subsection, include employees of privately owned or
operated firefighting or fire prevention services.
La. Rev. Stat. § 33:1991(A)(1) (emphasis added). Thus, the
Louisiana legislature specifically included firefighters employed
by nonprofit corporations that contract with political
subdivisions to provide fire protection services in the
definition of "fireman" in section 33:1991, but it did not
specifically include such firefighters in the definition of "fire
employee" in the Firefighter Bill of Rights. It follows that
17
section 33:2181 does not apply to employees of private
organizations such as IVFD.
West Virginia University Hospitals, Inc. v. Casey, 499 U.S.
83 (1991) is instructive in this regard. There, the Supreme Court
held that the term "attorney's fees" in the fee-shifting
provision of 42 U.S.C. § 1988 did not include expert witness fees
because many other fee-shifting statutes explicitly allowed for
shifting of both attorney's fees and expert witness fees. Id. at
88-92. The Court explained that "this statutory usage shows
beyond question that attorney's fees and expert fees are distinct
items of expense. If . . . the one includes the other, dozens of
statutes referring to the two separately becomes an inexplicable
exercise in redundancy." Id. at 92. So it is here as well. If a
private corporation such as IVFD were considered to be the "fire
department of a[] municipality, parish, or fire protection
district" within the meaning of section 33:2181, there would have
been no need for the Louisiana legislature to refer separately to
"municipal fire departments, parishes or parish fire departments,
or fire protection districts," and to "nonprofit corporations
under contract with a fire protection district or other political
subdivision to provide [fire protection] services" in section
33:1991. Cf. Casey, 499 U.S. at 101 (courts should not "treat
alike subjects that different Congresses have chosen to treat
differently"); Pa. Dep't of Public Welfare v. Davenport, 495 U.S.
18
552, 562 (1990) (expressing "a deep reluctance to interpret a
statutory provision so as to render superfluous other provisions
in the same enactment").
Plaintiff cites no authority contrary to the preceding
analysis. Accordingly, the Court concludes that plaintiff is not
a "fire employee" within the meaning of La. Rev. Stat.
§ 33:2181(A)(1), and does not enjoy the protections of the
Firefighter Bill of Rights. Thus, he cannot bring a procedural
due process claim based on a violation of that statute.
2.
Breach of Contract
Plaintiff alleges that TPD2, Independence, and IVFD
"individually and collectively knowingly and deliberately
violated the specific terms" of a contract among the three
entities that "regulates the conduct described in th[e]
complaint."75 The nature of defendants' alleged breach is
somewhat unclear from the complaint, but it appears that the
parties to the contract did not invoke its "dispute resolution
procedure" when Mayor Ragusa advised TPD2 of his intention to
withhold money from IVFD.76 Plaintiff alleges that he is a third
75
David S. Maurer v. Town of Independence, Louisiana et
al., No. 2:13-cv-05910, R. Doc. 1 at 39-40.
76
Id. at 41 (alleging that Mayor Ragusa and Independence
"deliberately ignored" the dispute resolution procedure and that
TPD2 and IVFD "acquiesced in and deliberately encouraged the
circumvention" of the procedure).
19
party beneficiary of this contract and thus is entitled to sue
for its breach.77
A court will not find a contract to contain a provision
benefitting a third party, called a "stipulation pour autrui,"
unless "the stipulation for a third party is manifestly clear."
Joseph v. Hosp. Serv. Dist. No. 2, 939 So. 2d 1206, 1212 (La.
2006). Plaintiff has pled no facts plausibly suggesting that any
contract among IVFD, Independence, and TPD2 contains a
"manifestly clear" stipulation for his benefit. His conclusory
assertion that one exists is insufficient to survive a motion to
dismiss. See JP Mack Indus. LLC v. Mosaic Fertilizer, LLC, Civil
Action No. 13-4888, --- F. Supp. 2d ---, 2013 WL 4776502, at *4
(E.D. La. Sep. 4, 2013) (plaintiff's mere allegation that he is
third party beneficiary to a contract is insufficient to survive
a motion to dismiss unless he "plead[s] factual content that
allows the Court to draw the inference that [defendant] is liable
under a third-party beneficiary . . . theory" (citing Iqbal, 556
U.S. at 678)); see also Lopes v. State Farm Mut. Auto. Ins. Co.,
No. Civ.A. 3:00CV1053L, 2001 WL 237383, at *3 (N.D. Tex. Mar. 6,
2001) (plaintiff's conclusory allegation that he was a third
party beneficiary of an insurance contract was insufficient to
state a claim against the insurer for breach of the contract).
Accordingly, the Court finds that plaintiff has not pled a
77
Id. at 40.
20
procedural due process claim based on defendants' alleged
contractual breaches.
3.
Civil Service System
In his opposition to defendants' motion to dismiss,
plaintiff appears to suggest that he had a property interest in
his employment that could not be taken away without due process
by virtue of the Louisiana Constitution, which provides that all
municipalities and fire protection districts operating a
"regularly paid fire department" must establish a classified
civil service system. La. Const. art. 10 § 16.78 But, as
defendants correctly point out in their reply brief, volunteer
fire departments such as IVFD that contract with municipalities
to provide fire protection services are not subject to that
requirement. See Heintz v. City of Gretna, 683 So. 2d 926, 928
(La. Ct. App. 1996). Volunteer fire departments "are 'operated'
by their membership, and not by the municipality," and so need
not establish a civil service system. Id.
Here, plaintiff alleges that he was employed by IVFD -- not
by Independence or TPD2. Thus, he cannot assert a procedural due
process claim based on the foregoing provision.
B.
"Stigma-Plus-Infringement" Claim
If a government employee is "discharged in a manner that
78
See R. Doc. 21-1 at 6-7.
21
creates a false and defamatory impression about him and
forecloses him from other employment opportunities," the employee
has a procedural due process right to "notice and an opportunity
to clear his name." Bledsoe v. City of Horn Lake, 449 F.3d 650,
653 (5th Cir. 2006) (quoting White v. Thomas, 660 F.2d 680, 684
(5th Cir. 1981)). A plaintiff alleging a violation of this
procedural right must prove seven elements in order to make out a
"stigma-plus-infringement" claim:
(1) he was discharged; (2) stigmatizing charges were made
against him in connection with the discharge; (3) the
charges were false; (4) he was not provided with notice
or an opportunity to be heard prior to the discharge; (5)
the charges were made public; (6) he requested a hearing
to clear his name; and (7) the employer denied the
request.
Id.
Even assuming that plaintiff qualifies as a public employee
for purposes of this analysis, plaintiff has failed to plead a
stigma-plus-infringement claim against any of the moving
defendants.
With regard to the IVFD defendants, plaintiff has not
alleged that IVFD or any of its board members publicly made any
false or stigmatizing charges against him in connection with his
termination. Plaintiff has alleged only that IVFD communicated
privately to him that he was terminated. That is an insufficient
basis for a stigma-plus-infringement claim. See Bishop v. Wood,
426 U.S. 341, 348 (1976) (private communications to the employee
22
are not "public" and cannot firm the basis of a stigma-plusinfringement claim); Hughes v. City of Garland, 204 F.3d 223, 228
(5th Cir. 2000) (stigma-plus-infringement claim requires
"intentional or official" disclosure by the plaintiff's
employer); Blackburn v. City of Marshall, 42 F.3d 925, 936 n.10
(5th Cir. 1995) ("A prerequisite to raising a liberty interest
claim based on stigma is that the statement be made public by the
defendant."); Nichols v. Univ. of S. Miss., 669 F. Supp. 2d 684,
697 (S.D. Miss. 2009) (noting that the "public" element requires
actual publication of the stigmatizing statements, not merely the
failure of the employer to keep a complaint against the employee
confidential). True, the complaint plausibly alleges that various
individuals gossiped about plaintiff's situation, but employers
have no constitutional "duty of rumor control." Nichols, 669 F.
Supp. 2d at 697; accord Hughes, 204 F.3d at 228. Plaintiff's
stigma-plus-infringement claim against the IVFD defendants is
further deficient because he has not alleged that he requested a
hearing with IVFD and was denied. See LaRivia v. Cerise, 462 F.
App'x 459, 462 (5th Cir. 2012) (plaintiff bringing a stigma-plusinfringement claim must show that he requested and was denied a
name-clearing hearing).
Turning to Mayor Ragusa and Independence, plaintiff has
failed to allege that either defendant made stigmatizing
statements in connection with plaintiff's termination. To be
23
stigmatizing, a statement must be more than merely adverse; "it
must be such as would give rise to 'a badge of infamy, public
scorn or the like,'" Blackburn, 42 F.3d at 936 (quoting Wells v.
Hico ISD, 736 F.2d 243, 256 & n.16 (5th Cir. 1984)), and
foreclose the employee from other employment opportunities, see
White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981) (damage to
reputation alone is insufficient to create a stigma-plusinfringement claim without stigmatization sufficient to foreclose
future employment opportunities); Nichols, 669 F. Supp. 2d at 697
(same). "Courts have routinely held that 'merely conclusory
allegations that Plaintiff was stigmatized, that her reputation
was substantially damaged and that she lost professional standing
are insufficient without factual support to allege a plausible
stigma-plus claim." Miley v. Housing Auth. of City of Bridgeport,
926 F. Supp. 2d 420, 432-33 (D. Conn. 2013) (collecting cases).
Plaintiff vaguely alleges that Ragusa wrote a letter to TPD2 that
contained some negative comments about the plaintiff, but he has
failed to plead facts plausibly suggesting that Ragusa's comments
exposed plaintiff to public scorn or foreclosed his opportunities
for future employment. Plaintiff's conclusory designation of
Ragusa's statements as "stigmatizing," without more, is
insufficient. Miley, 926 F. Supp. 2d at 432-33; see also Iqbal,
556 U.S. at 678 (court need not accept as true a "legal
conclusion couched as a factual allegation").
24
C.
Violation of the Whistleblower Law
Plaintiff alleges that Independence and Mayor Ragusa
violated Louisiana's "Whistleblower Law," which provides as
follows:
A. An employer shall not take reprisal against an
employee who in good faith, and after advising the
employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or
practice that is in violation of state law.
(2) Provides information to or testifies before any
public body conducting an investigation, hearing, or
inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment
act or practice that is in violation of law.
La. Rev Stat. § 23:967.
Plaintiff has not alleged that he "disclose[d] or
threaten[ed] to disclose a workplace act of practice that is in
violation of state law," that he provided information to a public
body conducting an investigation into a violation of law, or that
he "object[ed] to or refuse[d] to participate in an employment
act or practice that is in violation of law." Therefore, he has
not stated a claim for a violation of the Whistleblower Law.
D.
Defamation Claim
The only moving defendants against whom plaintiff asserts a
defamation claim are Parrozzo and Mayor Ragusa.79 Accordingly,
79
See David S. Maurer v. Town of Independence, Louisiana
et al., No. 2:13-cv-05910, R. Doc. 1 at 45; R. Doc. 21-1 at 11.
25
the Court limits its analysis to those defendants.
Under Louisiana law, "[f]our elements are necessary to
establish a defamation cause of action: (1) a false and
defamatory statement concerning another; (2) an unprivileged
communication to a third party; (3) fault (negligence or greater)
on the part of the publisher; and (4) resulting injury." Costello
v. Hardy, 864 So.2d 129, 139 (La. 2004) (quoting Trentecosta v.
Beck, 703 So.2d 552, 559 (La. 1997)). Defamatory words are
defined as "words which tend to harm the reputation of another so
as to lower the person in the estimation of the community, to
deter others from associating or dealing with the person, or
otherwise expose a person to contempt or ridicule." Id. at 140.
The issue of whether a particular communication is capable of a
defamatory meaning is a legal one for the Court, "answered by
determining whether a listener could have reasonably understood
the communication, taken in context, to have been intended in a
defamatory sense." Id. In order to adequately plead a defamation
claim under Louisiana law, a plaintiff must "specifically allege"
that the defendant made a false and defamatory statement with
malice. Lamar Adver. Co. v. Cont'l Cas. Co., 396 F.3d 654, 664
(5th Cir. 2005); Hardy v. Hartford Ins. Co., 236 F.3d 287, 292
(5th Cir. 2001); see also Badeaux v. Sw. Computer Bureau, Inc.,
929 So.2d 1211, 1218 (La. 2006) (plaintiff must "set forth in the
[complaint] with reasonable specificity the defamatory statements
26
allegedly published by the defendant").
The only statement plaintiff specifically attributes to
Parrozzo is the assertion, "All we are going to have to do is
vote and he [plaintiff] is out as fire chief."80 That is a
prediction of future events, not a statement of fact. Thus, it
cannot be false and therefore cannot be defamatory. See WCP/Fern
Exposition Servs., LLC v. Hall, Civil Action No. 3:08-CV-522,
2011 WL 1157699, at *13 (W.D. Ky. Mar. 28, 2011) ("prediction
about a possible future event" is not factual and hence cannot be
defamatory); Rushman v. City of Milwaukee, 959 F. Supp. 1040,
1044 (E.D. Wis. 1997) (predictions are not defamatory); Bebo v.
Delander, 632 N.W.2d 732, 740 (Minn. Ct. App. 2001) ("prediction
of a future event" is "not a fact capable of verification" and
therefore is not defamatory as a matter of law).
Plaintiff does not attribute any specific defamatory
statements to Mayor Ragusa. Instead, he simply alleges that
Ragusa made certain "allegations" about plaintiff in a letter to
TPD2, allegations that plaintiff later "refuted."81 Plaintiff's
conclusory statements later in the complaint that these
statements were "false," "made with malice," "published," and
"caused plaintiff injury" are insufficient to state a claim for
80
David S. Maurer v. Town of Independence, Louisiana et
al., No. 2:13-cv-05910, R. Doc. 1 at at 28.
81
Id. at 21, 23.
27
defamation. See Roebuck v. Dothan Sec., Inc., 515 F. App'x 275,
280 (5th Cir. 2013) (dismissing conclusory allegation that
defendants "'in bad faith maligned, negligently misrepresented,
defamed, defrauded and slandered plaintiff extremely and
outrageously'" because "'[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements, do
not suffice'" under Rule 8 (quoting Iqbal, 556 U.S. at 678)
(alteration in original)); Cooper v. Paragon Sys., Inc., Civil
Action No. 5:08-cv-169, 2008 WL 4187942, at *4 (S.D. Miss. Sep.
5, 2008) (dismissing defamation claim because "plaintiff fail[ed]
to set forth information in her complaint regarding the substance
or nature of any alleged statement or how it was defamatory").
Under Rule 8, a plaintiff cannot merely recite the elements of a
cause of action; instead, he must plead facts plausibly
suggesting an entitlement to relief. Iqbal, 556 U.S. at 678.
Here, plaintiff has failed to do so.
IV.
LEAVE TO AMEND
Courts should "freely give leave" to amend "when justice so
requires." Fed. R. Civ. P. 15(a)(2); Filgueira v. U.S. Bank Nat'l
Ass'n, 734 F.3d 420, 422 (5th Cir. 2013); Jamieson v. Shaw, 772
F.2d 1205, 1208 (5th Cir. 1985). The Court thus grants
plaintiff's request for an opportunity to amend his complaint.
V.
CONCLUSION
28
For the foregoing reasons, the Court GRANTS defendants'
motions and dismisses plaintiffs' claims against IVFD, Jeremy
Baham, Eric Anthony, Jonathan Tallo, Christopher McKinney,
Anthony Parrozzo, Michael Ragusa, and Independence without
prejudice. Plaintiff will be allowed fourteen (14) days from the
date of this order to amend their complaint. Failure to timely
amend the complaint will result in dismissal with prejudice.
New Orleans, Louisiana, this 28th day of February, 2014.
__
_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
29
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