Little v. Mizell et al
Filing
28
ORDER AND REASONS granting 16 Motion for Summary Judgment. Signed by Judge Ivan L.R. Lemelle. (ijg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GERALD G. LITTLE
CIVIL ACTION
VERSUS
NO. 15-268
CHARLES E. MIZELL, JR., ET AL.
SECTION "B"(1)
ORDER AND REASONS
Before the Court is Charles Mizell and the City of Bogalusa’s
(hereinafter “Defendants”) motion for summary judgment. Rec. Doc.
16.
Plaintiff
“Little”)
Gerald
filed
an
G.
Little
opposition
(hereinafter
memorandum.
“Plaintiff”
Rec.
Doc.
or
19.
Thereafter, the Court granted Defendants leave to file a reply
memorandum. Rec. Doc. 24. For the reasons outlined below,
IT IS ORDERED that the Motion is GRANTED.
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
This case arises out of Plaintiff’s employment with the City
of Bogalusa. Plaintiff worked for the City of Bogalusa in various
capacities for approximately twenty-six years. Rec. Docs. 16-2 at
1; 19-4 at 1. Most recently, he served as a sewer treatment
operator
in
the
City’s
Water
Department.
Rec.
Doc.
3
at
2.
Plaintiff claims that he was a member of Local Union No. 483 of
the American Federation of State, County, and Municipal Employees,
and that, pursuant to the contract between the City and the Union,
all overtime opportunities had to first be offered to the most
senior person in the pertinent department. Id. at 2-3. Plaintiff
1
further alleges that he reported several violations of this rule
to his supervisor, Don Jones. Id. at 3. Jones purportedly told him
“that if the workers would not follow the correct procedure for
reporting overtime, he would be correcting it himself on the time
sheets.” Id. at 4.
According to Plaintiff, on January 29, 2014, another sewer
treatment operator, Oscar Peters, worked an overtime shift without
first contacting him, allegedly in violation of the Union contract.
Id. When Plaintiff discovered the violation, he admittedly removed
Peters’s name from the time sheet and wrote in his own. Id. On
February 4, 2014, Peters and Little got into a confrontation
concerning the overtime issue. Rec. Doc. 19-4 at 4. Days later,
Plaintiff was told to attend a meeting with James Hall, the Public
Works
Supervisor,
Don
Jones,
the
Treatment
Plant
Supervisor,
Charlie Bulloch, the Union President, and David Jacobs, the Union
Treasurer, to discuss the confrontation with Peters. Rec. Docs.
16-1 at 3; 16-5 at 29-31. The outcome of that meeting is not
totally clear. In his deposition, Little first claims that he was
told he would be “laid off for three days,” presumably meaning he
would be suspended. Id. However, after Peters entered the meeting
and Little once again lost his temper, James Hall allegedly told
him that he was being fired for payroll fraud. Id. at 32.
Little then claims that Charlie Bulloch came up to him after
the meeting and told him that he was able to convince Hall to hold
2
off on firing him and that he would be “laid off,” or suspended,
without pay until another meeting occurred. Id. at 33-34. The next
morning, Little claims that he met with the Mayor, Charles Mizell.
Id. at 35. While the purpose of that meeting is not very clear,
Little
claims
that
the
Mayor
told
him
that
he
“allows
his
supervisors to do whatever they feel is the right thing [to] do,
and if he think[s] they made the wrong decision, he’d fire their
ass.” Id. at 35. Approximately six days after the incident, Little
allegedly went back to Bulloch to see if he could facilitate
another meeting. Id. at 34. Bulloch then supposedly told him that
he had been fired. Id. Despite this, Little contends that he
arranged
a
meeting
with
personnel
director
Sandy
Bloom
who
allegedly told him that the Mayor relayed to her that he had been
fired, but that if Hall allowed him back to work, he was looking
at a thirty-to-ninety-day suspension. Id. at 36. However, Little
then told Bloom that he thought it was in his best interest just
to retire, so she arranged for him to fill out his retirement
paperwork. Id. at 36-38. His paperwork was approved and deemed
effective February 6, 2014. Rec. Doc. 19-4 at 5. The City has
provided Little with full retirement benefits since that point,
but he nonetheless feels like he was forced into retirement. Id.
at 39-40, 42.
On January 28, 2015, Little filed suit against the City of
Bogalusa and Charles Mizell, Jr. in his individual capacity and in
3
his official capacity as mayor, alleging violations of the Fair
Labor Standards Act (“FLSA”) and his procedural due process. Rec.
Doc. 1 at 9-13. He also asserted additional state law claims for
unpaid wages and punitive damages. Id. at 13-15. Thereafter, Little
amended his complaint to name Charles E. Mizell rather than Charles
E. Mizell Jr. Rec. Doc. 3. He then voluntarily dismissed Charles
E. Mizell, Jr. Rec. Doc. 4. Mizell and the City of Bogalusa later
filed the instant motion for summary judgment.
II.
THE PARTIES’ CONTENTIONS
Defendants’ motion, labeled as a motion for summary judgment,
seeks dismissal of all claims against both Defendants because
“Plaintiff failed to state a cause of action under federal and/or
Louisiana state law, and there is no proof that the Defendants are
liable to the Plaintiff for the relief sought.” Rec. Doc. 16 at 1.
First,
Defendants
contend
that
Plaintiff’s
claims
for
unpaid
overtime wages under both federal and state law and his related
claim for punitive damages should be dismissed because he cannot
provide any dates or times that he worked for which he was not
paid.
Id.
at
4.
Additionally,
they
argue
that
Plaintiff’s
allegations do not state a valid cause of action for procedural
due process violations because he admits that he retired rather
than be fired. Id. at 6-7. Mizell further argues that Plaintiff
voluntarily dismissed him from the suit and, in any event, he is
entitled to qualified immunity because he did not violate clearly
4
established law. Id. at 7-8. Finally, Defendants maintain that
Plaintiff has failed to identify a policy or custom to hold them
vicariously liable. Id. at 11.
Little responds by claiming that he does have a valid claim
for violations of procedural due process because the Defendants
constructively discharged him without pre-deprivation notice, a
hearing, or a meaningful opportunity to respond. Rec. Doc. 19 at
3. Essentially, he claims that he was forced to choose between
voluntary
resignation
and
forced
termination.
Id.
at
6.
Furthermore, Little argues that Mizell is not entitled to qualified
immunity because his constructive discharge was in violation of a
clearly established right to a pre-deprivation hearing. Rec. Doc.
19 at 8-10. He also counters the Defendants’ argument that he
failed to identify a relevant policy or custom by claiming that
the City demonstrated a complete disregard for procedural due
process requirements. Id. at 10. With respect to the wage claims
challenged by Defendants, Plaintiff only discusses the state law
claim for unpaid overtime wages. They claim that they are seeking
eight hours of overtime that plaintiff should have been allowed to
work on January 29, 2014 plus penalty wages and attorney’s fees
under LA. STAT. ANN. § 23:632. Id. at 11. For these reasons, Little
urges
the
Defendants’
Court
reply
to
deny
the
memorandum
motion
then
5
for
attempts
summary
to
judgment.
counter
the
constructive discharge and other arguments put forth by Little.
Rec. Doc. 24.
III. LAW AND ANALYSIS
Under Federal Rule of Civil Procedure 56, summary judgment is
appropriate
only
interrogatories,
if
and
“the
pleadings,
admissions
on
depositions,
file,
together
answers
to
with
the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment as
a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). See also TIG Ins. Co. v. Sedgwick James of Washington, 276
F.3d 754, 759 (5th Cir. 2002). A genuine issue exists if the
evidence would allow a reasonable jury to return a verdict for the
nonmoving party.
248 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
The movant must point to “portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together
with
affidavits’
which
it
believes
demonstrate
the
absence of a genuine issue of material fact.” Celotex, 477 U.S. at
323. If and when the movant carries this burden, the non-movant
must then go beyond the pleadings and present other evidence to
establish a genuine issue.
Matsushita Elec. Indus. Co. V. Zenith
Radio Corp., 475 U.S. 574, 586 (1986). However, “where the nonmovant bears the burden of proof at trial, the movant may merely
point to an absence of evidence, thus shifting to the non-movant
the burden of demonstrating by competent summary judgment proof
6
that there is an issue of material fact warranting trial.” Lindsey
v. Sears Roebuck and Co., 16 F.3d 616, 618 (5th Cir. 1994).
Conclusory rebuttals of the pleadings are insufficient to avoid
summary judgment.
Travelers Ins. Co. v. Liljeberg Enter., Inc.,
7 F.3d 1203, 1207 (5th Cir. 1993). The Court will begin by
addressing Plaintiff’s due process claim.
a. Plaintiff’s Due Process Claim
“To state a § 1983 claim based on termination of employment
without affording procedural due process, [the plaintiff] must
allege that (1) she has a property interest in her employment
sufficient to entitle her to due process protection, and (2) she
was terminated without receiving the due process protection to
which
she
was
entitled.”
Broussard
v.
Lafayette
City-Parish
Consol. Gov’t, 45 F. Supp. 3d 553, 568 (W.D. La. 2014) (quoting
LeBeouf v. Manning, 575 Fed. Appx. 374, 376 (5th Cir. 2014)). See
also McDonald v. City of Corinth, Tex., 102 F.3d 152, 155-56 (5th
Cir. 1996). Defendants do not contest that Plaintiff had a property
interest in his employment, the issue here is whether he was
terminated without receiving due process protection. See Rec. Doc.
16-1. Defendants claim that Little cannot maintain his procedural
due process claim against either Defendant because he voluntarily
retired and was never terminated. Rec. Doc. 16-1 at 6. However,
Plaintiff maintains that he was constructively discharged. Rec.
Doc. 19 at 3.
7
“To
show
constructive
discharge,
an
employee
must
offer
evidence that the employer made the employee’s working conditions
so intolerable that a reasonable employee would feel compelled to
resign.” Finch v. Fort Bend Ind. Sch. Dist., 333 F.3d 555, 562
(5th Cir. 2003) (citing Barrow v. New Orleans S.S. Ass’n, 10 F.3d
292,
297
(5th
Cir.
1994)).
Put
another
way,
a
constructive
discharge occurs when the employer places the employee “between
the Scylla of voluntary resignation and the Charybdis of forced
termination.” Fowler v. Carrollton Pub. Library, 799 F.2d 976, 981
(5th Cir. 1985). Whether a reasonable employee would feel compelled
to resign depends on the facts and circumstances of each particular
case, but the Fifth Circuit has provided a number of relevant
factors to consider in making the determination: “(1) demotion;
(2) reduction in salary; (3) reduction in job responsibilities;
(4) reassignment to menial or degrading work; (5) reassignment to
work under a younger supervisor; (6) badgering, harassment, or
humiliation by the employer calculated to encourage the employee’s
resignation; or (7) offers of early retirement on terms that would
make the employee worse off whether the offer was accepted or not.”
Barrow, 10 F.3d at 297.
Here, Plaintiff does not demonstrate the applicability of any
of the seven factors. While the seventh factor appears related to
this case, Little does not demonstrate that retirement was offered
to him as an alternative to termination. Instead, his deposition
8
testimony states that he felt like retirement was in his best
interest.
Rec.
Doc.
16-5
at
37.
Seemingly
recognizing
the
inapplicability of any of those factors, Plaintiff points this
Court’s attention to Findeisen v. North East Independent School
District, 749 F.2d 234, (5th Cir. 1984), and Bueno v. City of
Donna, 714 F.2d 484 (5th Cir. 1983), to support his claim that he
was constructively discharged. However, the Fifth Circuit has made
clear that:
Findeisen
and
Bueno,
far
from
constitutionalizing any cause of action for
constructive discharge, apply only in the
narrow range of cases in which an employee
confronts
an
either/or
termination
proposition, and it can be said that the state
agency’s motive is to avoid providing the
pretermination remedy required by Loudermill.
Fowler, 799 F.2d at 981. This is not one of those narrow cases.
Plaintiff has failed to produce any evidence tending to
establish
that
the
City’s
motive
was
to
avoid
providing
a
pretermination hearing. Moreover, it is not even clear that Little
was in that either/or scenario because it seems that suspension
was
still
a
real
possibility.
See
Rec.
Doc.
16-5
at
36.
Accordingly, Findeisen and Bueno are not persuasive. None of
Plaintiff’s self-serving testimony is sufficient to show that the
City
requested,
encouraged,
or
offered
retirement
as
an
alternative to termination, let alone that it did so to avoid its
constitutional obligations. In fact, City officials held numerous
9
meetings with Little before he elected to retire; it does not
follow that the City would force him into retirement simply to
avoid another similar hearing that comported with the requirements
of
Loudermill.
All
Little
has
provided
the
Court
with
is
subjective, self-serving testimony that is insufficient to prevent
summary judgment. See Hargay v. City of Hallandale, 57 F.3d 1560,
1568
(11th
Cir.
1995)
(“[T]he
assessment
[of]
whether
real
alternatives were offered is gauged by an objective standard rather
than by the employee’s purely subjective evaluation; that the
employee may perceive his only option to be resignation . . . is
irrelevant.”). He has produced no evidence tending to show, by an
objective
standard,
that
he
faced
no
option
but
to
retire.
Consequently, his due process claims must be dismissed.
b. Plaintiff’s Wage Claims
In his amended complaint, Plaintiff claims a violation of the
FLSA for unpaid wages for certain overtime shifts that he worked
or should have worked pursuant to the Union contract. Rec. Doc. 3
at 9. Plaintiff also claims that he is owed unpaid overtime wages
from his last paycheck and that he is entitled to related penalty
damages under LA. STAT. ANN. § 23:632. Id. at 11. Plaintiff cannot
seek to recover unpaid overtime wages under both the FLSA and
Louisiana state law because such state law claims are preempted by
the FLSA if the employee was engaged in interstate commerce. Kidder
v. Statewide Transport, Inc., 2013-594, p. 6 (La. App. 3 Cir.
10
12/18/13); 129 So. 3d 875, 880. See also Divine v. Levy, 36 F.
Supp. 55, 58 (W.D. La. 1940) (“Even though the penalties of both
the state and federal statutes could be imposed without there being
a direct conflict, we believe the penalty provision of the Federal
Act, when invoked, becomes exclusive and the penalty provisions of
the state statute may not be applied.”). Further, if the employee
engaged only in intrastate commerce, then the FLSA is wholly
inapplicable.
See
29
U.S.C.
§
207(a).
Because
Plaintiff’s
opposition only addresses a “state law claim” for eight hours of
overtime wages that he “should have been allowed to work on January
29, 2016 as well as penalty wages under § 23:632,” Rec. Doc. 19 at
11, this Court reads it as conceding any FLSA claim and arguing
for the applicability of LA. STAT. ANN. § 23:631. As such, any and
all claims under the FLSA are hereby dismissed.
With
all
of
Plaintiff’s
federal
law
claims
against
the
Defendants dismissed, that leaves only his state law wage claims
over
which
this
Nevertheless,
28
Court
U.S.C.
does
§
not
have
1367(a)
original
provides
for
jurisdiction.
supplemental
jurisdiction over pendent state law claims that are sufficiently
related to claims over which the Court has original jurisdiction.
Yet, district courts may use their discretion to decline to
exercise supplemental jurisdiction over such claims if, among
other reasons, the state law claims substantially predominate over
the claims with original jurisdiction or the court has dismissed
11
all claims over which it has original jurisdiction. 28 U.S.C. §
1367(c).
Here,
the
Court
will
exercise
that
discretion
over
Plaintiff’s remaining state law claims, which are best left for
resolution in the state court system.
IV.
CONCLUSION
For the reasons outlined above,
IT IS ORDERED that the motion is GRANTED. All of Plaintiff’s
federal claims are hereby DISMISSED WITH PREJUDICE. However, his
remaining state law claims are DISMISSED WITHOUT PREJUDICE to bring
in state court.
New Orleans, Louisiana, this 22nd day of June, 2016.
____________________________
UNITED STATES DISTRICT JUDGE
12
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