Little v. Mizell et al

Filing 32

ORDER AND REASONS denying 30 Motion for New Trial. 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

Gerald

G.

Little’s

(“Plaintiff”

or

“Little”) “Motion for New Trial.” Rec. Doc. 30. Defendants timely
filed an opposition memorandum. Rec. Doc. 31. For the reasons
discussed below,
IT IS ORDERED that the Motion is DENIED.
This case arises out of Little’s employment with the City of
Bogalusa as a sewer treatment operator. Little retired from his
employment with the City after an altercation with a colleague
over the proper procedure for awarding overtime hours. Following
a number of meetings with city officials in which several potential
disciplinary actions were discussed, including termination, Little
stated that he thought retirement was “in his best interest.”
However, Little feels that Defendants forced him into retirement.
He then filed suit against the City of Bogalusa and Charles Mizell,
Jr., asserting violations of the overtime wage requirements of the
Fair Labor Standards Act (“FLSA”) and Louisiana Statutes Annotated
§ 23:632, as well as violations of his procedural due process
rights. See Rec. Doc. 1.
1

The Court previously granted summary judgment in favor of
Defendants. Rec. Docs. 28 and 29. In that Order and Reasons, this
Court found that Plaintiff could not establish a violation of his
procedural due process rights because he had no relevant evidence
demonstrating that he was terminated or constructively discharged.
Rec. Doc. 28 at 7-10. We also concluded that Plaintiff’s opposition
memorandum conceded any claims brought under the FLSA by arguing
for unpaid overtime wages under the applicable state statutes,
which the FLSA would have otherwise preempted. Id. at 10-11.
Finally, after dismissing all of Plaintiff’s federal law claims,
this Court declined to exercise supplemental jurisdiction over
Plaintiff’s state law claims, dismissing them without prejudice to
bring in state court. Id. at 11-12. Plaintiff then timely filed
the present motion for a new trial.
Little maintains “that a new trial should be granted to
correct manifest errors and to prevent manifest injustice.” Rec.
Doc. 30-1 at 1. Plaintiff first argues that the Court erred by
improperly assessing his credibility. Id. at 2. Further, Plaintiff
argues that his procedural due process claim should not have been
dismissed because he did not receive pre-deprivation notice or an
opportunity to be heard. Id. at 3. He claims without any supporting
authority that those procedural due process rights were triggered
as

soon

as

his

colleague

reported

their

confrontation

to

a

supervisor. Id. at 4. Finally, Plaintiff contends that this Court
2

refused to consider evidence that Defendants forced him into
retirement. Id. at 6-8. Accordingly, he urges the Court to amend
its judgment and reset the case for trial.
Defendants’ opposition memorandum argues that this Court’s
ruling was correct because it did not improperly assess Plaintiff’s
credibility. Rec. Doc. 31 at 1. Defendants further contend that
the remainder of Plaintiff’s arguments offer no legal grounds
supporting

a

claim

of

manifest

error.

Id.

at

2.

Therefore,

Defendants urge this Court to deny the motion.
It appears from Plaintiff’s motion that he aims to invoke
Federal Rule of Civil Procedure 59(e), which permits a party to
file a motion to alter or amend a judgment.1 The language of Rule
59(e) does not set forth specific grounds for relief. However, the
Fifth Circuit has identified the primary bases for relief: “A
motion to alter or amend the judgment under Rule 59(e) must clearly
establish either a manifest error of law or fact or must present
newly discovered evidence and cannot be used to raise arguments
which could, and should, have been made before judgment issued.”
Rosenblatt v. United Way of Greater Houston, 607 F.3d 413, 419
(5th Cir. 2010) (internal alterations and quotation marks omitted)
(quoting Rosenzweig v. Azurix Corp., 332 F.3d 854, 864 (5th Cir.

Plaintiff does not specifically invoke any single rule. However, he styles
his motion as one for a new trial, a matter which is typically governed by
Rule 59(a). However, no trial ever took place in this matter, leading this
Court to believe that he intended to invoke Rule 59(e). See FED. R. CIV. P. 59.
1

3

2003)). In exercising its discretion under Rule 59(e), this Court
must balance the need for finality with the need to “render just
decisions on the basis of all the facts.” Edward H. Bohlin Co.,
Inc. v. Banning Co., Inc., 6 F.3d 350, 355 (5th Cir. 1993).
In this case, Plaintiff seeks to demonstrate that this Court
committed a manifest error of law. Plaintiff’s motion does not
challenge this Court’s findings concerning his state law claims or
his FLSA claims. See Rec. Doc. 30-1. Therefore, the only issue
before

the

Court

is

whether

we

committed

manifest

error

in

dismissing Plaintiff’s procedural due process claims on summary
judgment.
As an initial matter, Plaintiff’s argument concerning the
sufficiency

of

the

pre-retirement

procedures

afforded

him

is

irrelevant because this Court found no termination or deprivation
so

as

to

require

constitutionally-adequate

predeprivation

procedures. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 433
(1982) (“[I]t has become a truism that ‘some form of hearing’ is
required before the owner is finally deprived of a protected
property interest.”) (emphasis added); see also LeBeouf, 2015 WL
3650797 at *7 (noting that failure to provide the plaintiff with
predeprivation procedures would only violate her rights if she was
terminated). Little also provides absolutely no legal authority to
support his argument that his procedural due process rights were
triggered when his supervisor learned of his confrontation with a
4

colleague. Moreover, he did not raise the argument in his initial
motion and thus cannot do so here after judgment has issued. See
Rosenblatt, 607 F.3d at 419. Nor do we find excusable neglect to
merit further consideration. Plaintiff’s only relevant arguments
are those concerning this Court’s finding that he failed to present
relevant and probative evidence sufficient to raise a genuine issue
of fact in support of his constructive discharge claim.
As we previously acknowledged, “[t]o 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). Little does
not allege that he was terminated. Rather, he argues that the
circumstances surrounding his retirement constituted constructive
discharge.
“[T]o 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.” LeBeouf, 2015 WL 3650797 at 7 (emphasis added). In other
5

words, 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). Additionally, to
establish constructive discharge in a procedural due process case,
a plaintiff must demonstrate that forced discharge was used to
avoid

providing

constitutionally-adequate

pretermination

procedures. See LeBeouf, 2015 WL 3650797 at 7 (citing Fowler, 799
F.2d at 981).
First, Plaintiff concedes that he was not placed between the
“Scylla of voluntary resignation and the Charybdis of forced
termination.” In his opposition, Little explicitly admits that
discipline was a “moving target,” meaning forced termination was
not his only alternative at the time he chose to retire. Rec. Doc.
30-1 at 4-6. He acknowledges that a minor three-day suspension was
still a possibility. Rec. Doc. 30-1 at 6. This was not an either/or
situation in which Plaintiff was forced to pick between termination
or retirement. Fowler, 799 F.2d at 981.
Also, Plaintiff now claims for the first time that the
Defendants’

conduct

constituted

badgering,

harassment,

and/or

humiliation, making his working conditions so intolerable that he
felt compelled to retire. Specifically, he argues that “[t]he
circumstantial evidence that the City did not actually put any of
its threats (three-day suspension, termination, 90 days lay-off)
6

in

writing

meant

that

the

City

intentionally

subjected

the

plaintiff to a great deal of anxiety about the status of his
employment

and

thereby

maneuvered

plaintiff

toward

the

only

palatable alternative-retirement.” Rec. Doc. 301- at 6-7. While
Plaintiff may have felt anxiety about whether he would be able to
maintain his employment with the City following his physical
altercation with a coworker, Plaintiff does not point to evidence
establishing that a reasonable person would have felt compelled to
retire.
After being informed that suspension was still a possibility,
see Rec. Doc. 16-5 at 29-31, 33-34, 36, a reasonable person would
have felt that he or she had a third “palatable” option other than
retirement or termination—accepting a suspension. A reasonable
person would not feel compelled to retire or resign in such a
situation. From an objective perspective, Plaintiff had a real
alternative to termination or retirement. See Hargay v. City of
Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995); Stone v. Univ. of
Md.

Med.

Sys.

Furthermore,

Corp.,

none

of

855

F.2d

167,

Defendant’s

174

conduct

(4th
as

Cir.

1988).2

reflected

by

Plaintiff also claims that this Court impermissibly assessed his credibility
in finding his testimony insufficient to prevent summary judgment. Rec. Doc.
30-1 at 2. This Court previously found Little’s claim that he felt compelled to
retire to be “subjective, self-serving testimony that is insufficient to prevent
summary judgment.” Rec. Doc. 28 at 10. However, this Court did not and does not
rule on Plaintiff’s credibility. Instead, we find that testimony irrelevant,
because “the assessment [of] whether real alternatives were offered is gauged
by an objective standard rather than by the employee’s purely subjective
evaluation.” Hargay, 57 F.3d at 1568.
2

7

Plaintiff’s
badgering,

evidence
or

can

fairly

humiliation.

At

be

described

worst,

as

objectively

harassment,
speaking,

Defendants’ conduct constituted indecisive leadership in dealing
with alleged employee misconduct. Plaintiff fails to recognize and
address the objective standard that governs this inquiry, instead
relying once again on purely subjective inferences.
Finally, as we explicitly discussed in the previous Order and
Reasons, Plaintiff provided no direct or circumstantial evidence
tending to show that Defendants engaged in conduct designed to
push Little into retirement for the purpose of avoiding compliance
with the constitutional safeguards mandated by Loudermill. See
Rec. Doc. 28 at 9. Now, in an attempt to combat this conclusion,
Plaintiff argues that “[o]bviously the City was motivated to avoid
any further involvement with the plaintiff so it can be inferred
that their motivation included the desire to avoid a Loudermill
hearing.” He cites to no direct or circumstantial evidence in
support

of

this

overly

conclusory

contention.

Plaintiff’s

unsubstantiated and circular argument does nothing to persuade
this Court that the evidence is sufficient to raise a genuine issue
of fact as to constructive discharge.
To reiterate, the evidence presented by Little shows that the
City was in fact willing to sit down with Plaintiff on numerous
occasions. There is nothing in the record to suggest that it was
or would have been unwilling to hold a subsequent hearing if it
8

decided later to seek to terminate Little. Little has provided
absolutely no evidence tending to show that any of the Defendants’
conduct

was

designed

to

avoid

constitutionally-adequate

pretermination procedures. Consequently, he has not demonstrated
constructive discharge and his procedural due process claim must
fail. See LeBeouf, 2015 WL 3650797 at 7.
New Orleans, Louisiana, this 17th day of August, 2016.

___________________________________
SENIOR UNITED STATES DISTRICT JUDGE

9