Dumas v. St. Tammany Parish Fire District No. 3 et al

Filing 22

ORDER & REASONS. It is ORDERED that Defendants' 14 Motion to Dismiss is GRANTED IN PART and DENIED IN PART. Plaintiff's First Amendment freedom of association and freedom of speech retaliation claims against Defendant Lober are DISMISSE D WITH PREJUDICE. Plaintiff's First Amendment freedom of speech retaliation claim, as it relates to May 2016 union letter, against Defendant Sicard is DISMISSED WITH PREJUDICE. Plaintiff's First Amendment freedom of speech retaliation clai m, as it relates to communication with Rick Franzo and Cindy Rester, against Defendant Sicard is not dismissed. It is FURTHER ORDERED that Plaintiff is granted leave to file an amended complaint within 30 days from the entry of this order as state d within document. Defendants may then file a responsive pleading within 10 days of Plaintiff's amended complaint. It is FURTHER ORDERED that to the extent that Plaintiff sought monetary damages pursuant to Louisiana Revised Statute 23:822, that claim is DISMISSED WITH PREJUDICE. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JAMES DUMAS

CIVIL ACTION

VERSUS

No.: 17-1025

ST. TAMMANY PARISH FIRE
DISTRICT NO. 3, ET AL.

SECTION: “J”(1)

ORDER & REASONS
Before the Court is Defendants’ 1 Rule 12(b)(6) Motion to
Dismiss (R. Doc. 14). Plaintiff, James Dumas, filed an opposition
(R. Doc. 18) thereto, and Defendants filed a reply memorandum (R.
Doc. 21) in response. Having considered the motion and legal
memoranda, the record, and the applicable law, the Court finds
that the motion should be GRANTED IN PART and DENIED IN PART.
FACTS AND PROCEDURAL BACKGROUND
Plaintiff, James Dumas, is a firefighter at St. Tammany Parish
Fire District No. 3, which generally serves Lacombe, Louisiana. 2
In 2012, some of the firefighters at District No. 3 formed a labor
union, of which Plaintiff is the vice-president. In May 2016, the
union submitted a letter to District No. 3’s Civil Service Board
(“CSB”) expressing a “vote of no confidence” in Fire Chief Patrick
Sicard

(“Sicard”),

and

further

alleged

that

Sicard

violated

1 St. Tammany Parish Fire District No. 3, and Fire Chief Patrick Sicard and
Assistant Fire Chief Scott Lober, in their personal and official capacities.
2 The parties do not dispute the general facts which form the basis of this
lawsuit.

1

several provisions of civil service law, Louisiana Revised Statute
§ 33:2560, including failing to perform the duties of his position
by understaffing ambulance operations and fire protection. The
letter further complained of Sicard’s discourteous and offensive
behavior, which included allegedly posting a picture of himself
wearing a “Hitler mustache” while performing the “Heil Hitler
salute,” performing the salute in person, using racial slurs, and
using sexually explicit innuendos to disparage the union. In
response to the union’s letter, the CSB opened an investigation
into Sicard’s behavior and scheduled a disciplinary hearing for
May 26, 2016. Between March 24, 2016 and May 12, 2016, Plaintiff
had Facebook conversations with Rick Franzo, the president of a
local community group called Concerned Citizens of St. Tammany,
and Cindy Rester, a member of Concerned Citizens of St. Tammany.
Plaintiff expressed his concern about Sicard’s alleged racism and
incompetence as Fire Chief to Franzo and invited both him and
Rester to Sicard’s public disciplinary hearing.
In

June

2016,

the

CSB

concluded

its

disciplinary

investigation. Sicard’s punishment was a one-day suspension and a
mandate to attend sensitivity training. On July 20, 2016, Assistant
Fire Chief Scott Lober (“Lober”), who was acting as Fire Chief in
Sicard’s

absence,

issued

Plaintiff

a

notice

of

investigation

alleging that Plaintiff’s communication with Franzo and Rester
violated Louisiana Revised Statute § 33:2560 and District No. 3’s
2

policies relating to conduct and behavior of personnel. Plaintiff
alleges that the notice specifically alleged that Plaintiff was
insubordinate, aired grievances outside of the chain of command,
and engaged in communications that had the potential to bring
public reproach to the department. District No. 3’s Disciplinary
Investigation Committee concluded its investigation of Plaintiff
and recommended that he be suspended for five shifts without pay.
Ultimately,

Sicard

accepted

this

recommendation

and

issued

Plaintiff a five-shift suspension, without pay. Plaintiff appealed
his suspension to the CSB, but the suspension was upheld.
On February 6, 2017, Plaintiff filed this lawsuit against St.
Tammany Fire District No. 3 and Sicard and Lober in their official
and individual capacities. Plaintiff asserts three claims: (1)
First Amendment retaliation for Plaintiff’s exercise of his right
to freedom of association with the union; (2) First Amendment
retaliation for Plaintiff’s exercise of his First Amendment right
to freedom of speech; and (3) Plaintiff alleges that Defendants
took action against him for exercising his right to associate and
self-organize under La. Rev. Stat. § 23:822. On April 3, 2017,
Defendants filed the present motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). Defendants move to dismiss only
some

of

dismiss

Plaintiff’s

claims.

Plaintiff’s

First

Specifically,
Amendment

Defendants

freedom

of

move

to

association

retaliation claim against Lober in his official and individual
3

capacity,

Plaintiff’s

First

Amendment

freedom

of

speech

retaliation claim against all Defendants, and Plaintiff’s state
law claim to the extent that it asserts a claim for monetary
damages. 3 Plaintiff argues that Defendants’ motion should be denied
in its entirety. Defendants’ motion is now before the Court on the
briefs and without oral argument.
PARTIES’ ARGUMENTS
1.

Plaintiff’s

First

Amendment

Freedom

of

Association

Retaliation Claim against Defendant Lober
a.

Defendants’ Arguments

Defendant Lober argues that in order to prevail on a First
Amendment freedom of association retaliation claim, Plaintiff must
demonstrate that he has suffered an adverse employment action.
Lober argues that the only specific factual allegation against
Lober is that he issued Plaintiff a notice of investigation on
July 20, 2016. Lober contends that the notice of investigation is
not an adverse employment action. 4 Lober further argues that even
if the issuance of the notice of investigation was an adverse
employment action, he is entitled to qualified immunity. Lober
asserts

that

Plaintiff

cannot

show

that

the

law

was

clearly

established at the time that issuing the notice of investigation

3

R. Doc. 14-1 at 25.
Id. at 6 (citing Breaux v. City of Garland, 205 F.3d 150 (5th Cir. 2000);
Ortego v. Dep’t of Transp., No. 13-836, 2014 WL 12521695, at *6 (E.D. La. Feb.
18, 2014)).
4

4

was an adverse employment action. For these reasons, Lober argues
that

Plaintiff’s

First

Amendment

freedom

of

association

retaliation claim against him should be dismissed.
b.

Plaintiff’s Arguments

Plaintiff argues the issuance of the notice of investigation
is an adverse employment action. Plaintiff contends that the proper
standard to determine whether a public employee has suffered an
adverse employment action is whether a reasonable employee would
have found the challenged action materially adverse. 5 Further,
while Plaintiff’s complaint does not address Defendants’ qualified
immunity defenses, Plaintiff argues that Lober is not entitled to
qualified immunity. Plaintiff contends that he must only show that
his right to engage in free speech and association were clearly
established at the time of the challenged conduct. Because freedom
of speech and association are two clearly established rights,
Plaintiff argues that he has satisfied his burden at this stage of
the proceedings.
2.

Plaintiff’s First Amendment Freedom of Speech Retaliation
Claim against All Defendants
a.

Defendants’ Arguments

Defendants contend that Plaintiff’s First Amendment freedom
of

speech

retaliation

claim

should

5

be

dismissed

because

R. Doc. 18 at 14 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S.
53, 68 (2006)).
5

Plaintiff’s
concern. 6

speech

was

not

primarily

on

a

matter

of

public

Specifically, Defendants argue that the content of the

speech at issue in this case is not primarily a matter of public
concern, the form of the speech at issue was primarily private,
and the context of the speech concerned an employment grievance.
Accordingly, Defendants argue that the subject speech is not
protected, and this claim should be dismissed as to all Defendants.
Defendants Lober and Sicard argue that they are entitled to
qualified immunity against Plaintiff’s freedom of speech claim.
They argue that Plaintiff cannot show that the law was clearly
established that Plaintiff’s speech primarily involved a matter of
public concern. Thus, Lober and Sicard argue that Plaintiff’s
freedom

of

speech

retaliation

claim

against

them

in

their

individual capacities should be dismissed. Additionally, Defendant
Lober argues that Plaintiff’s freedom of speech retaliation claim
against him should be dismissed because Lober did not take an
adverse employment action against Plaintiff.
b.

Plaintiff’s Arguments

Plaintiff argues that his First Amendment freedom of speech
retaliation claim should not be dismissed. Although noting that
his speech is a mix of public and private speech, Plaintiff argues

6

Defendants make clear that their “motion only addresses the public concern
requirement. It does not address the ‘speech as a citizen’ requirement or other
requirements for First Amendment protection of public employee speech.” R. Doc.
14-1 at 12.
6

that his speech addressed a matter of public concern and is
entitled to protection. Plaintiff further contends that Sicard and
Lober are not entitled to qualified immunity. Plaintiff argues
that he has pleaded sufficient facts to establish that Sicard and
Lober violated a constitutional right that was clearly established
at the time of the challenged conduct. Specifically, Plaintiff
argues that he must only show that his right to engage in free
speech was clearly established. Accordingly, Plaintiff argues that
his claims against Defendants should not be dismissed, and that
they are not entitled to qualified immunity.
3.

Plaintiff’s State Law Claim
a.

Defendants’ Argument

Defendants only argue that to the extent Plaintiff seeks
monetary damages for the alleged violation of Louisiana Revised
Statute

§

23:822,

this

claim

for

monetary

damages

should

be

dismissed. Defendants contend that the statute does not create a
private cause of action entitling Plaintiff to monetary damages.
b.

Plaintiff’s Arguments

Plaintiff argues that he seeks injunctive relief pursuant to
Louisiana Revised Statute § 23:822. Plaintiff contends that he
seeks an injunction preventing Defendants from violating this law
in the future. Therefore, Plaintiff argues that this claim should
not be dismissed.

7

LEGAL STANDARD
Under the Federal Rules of Civil Procedure, a complaint must
contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). The
complaint must “give the defendant fair notice of what the claim
is and the grounds upon which it rests.” Dura Pharm., Inc. v.
Broudo, 544 U.S. 336, 346 (2005). The allegations “must be simple,
concise, and direct.” Fed. R. Civ. P. 8(d)(1).
“Under

Rule

12(b)(6),

a

claim

may

be

dismissed

when

a

plaintiff fails to allege any set of facts in support of his claim
which would entitle him to relief.” Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr.
Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). 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 (2009) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
facially plausible when the plaintiff pleads facts that allow 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, 232 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th
Cir. 1996). The court is not, however, bound to accept as true
8

legal conclusions couched as factual allegations. Iqbal, 556 U.S.
at

678.

“[C]onclusory

allegations

or

legal

conclusions

masquerading as factual conclusions will not suffice to prevent a
motion to dismiss.” Taylor, 296 F.3d at 378.
DISCUSSION
1.

Plaintiff’s

First

Amendment

Freedom

of

Association

Retaliation Claim against Defendant Lober
Defendant

Lober

argues

that

Plaintiff’s

First

Amendment

freedom of association retaliation claim against him should be
dismissed, because, in the context of First Amendment retaliation
claims, the issuance of a notice of investigation is not an adverse
employment action. Plaintiff argues that the issuance of the notice
of investigation is an adverse employment action in violation of
Plaintiff’s First Amendment freedom of association rights.
“In order to state a claim for retaliation based on the First
Amendment right to freedom of association, a plaintiff must show:
(1) he suffered an adverse employment action, (2) his interest in
‘associating’ outweighed the [employer’s] interest in efficiency,
and (3) his protected activity was a substantial or motivating
factor in the adverse employment action.” Caleb v. Grier, 598 F.
App’x 227, 237 (5th Cir. 2015) (quoting Hitt v. Connell, 301 F.3d
240, 246 (5th Cir. 2002)). Plaintiff argues that the appropriate
standard to determine whether an employee has suffered an adverse
employment action is whether “a reasonable employee would have
9

found the challenged action materially adverse, which means it
well might have dissuaded a reasonable worker from engaging in the
protected conduct.” Plaintiff cites to Burlington Northern & Santa
Fe Railway Co. v. White in support of this position. In Burlington,
a Title VII discrimination case, the Supreme Court rejected the
standards used by several Courts of Appeals limiting an adverse
employment action to “ultimate employment decisions.” 548 U.S. 53,
67

(2006).

The

Supreme

Court

adopted

a

new

formulation

to

demonstrate retaliation in the Title VII context: “a plaintiff
must

show

that

a

reasonable

employee

would

have

found

the

challenged action materially adverse, ‘which in this context means
it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Id. (emphasis added)
(quoting Rochon v. Gonzalez, 438 F.3d 1211 (D.C. Cir. 2006)). It
is clear that the Burlington standard applies in Title VII cases, 7
but,

“[the

Fifth

Circuit]

has

not

yet

decided

whether

the

Burlington standard for adverse employment actions also applies to
First Amendment retaliation cases.” See Gibson v. Kirkpatrick, 734
F.3d 395, 400 n.4 (5th Cir. 2013) (Gibson I), vacated and remanded
on other grounds, Gibson v. Kirkpatrick, 134 S. Ct. 2874 (2014)
(Gibson II)); 8 see also DePree v. Saunders, 588 F.3d 282, 288 (5th

7 See Coffman v. Alvin Cmty. Coll., 642 F. App’x 472, 478 (5th Cir. 2016)
(applying Burlington standard in Title VII retaliation case).
8 The Supreme Court reversed and remanded Gibson I and instructed the Fifth
Circuit to consider Lane v. Franks, 134 S. Ct. 2369 (2014), which primarily
addressed whether speech was on a matter of public concern.

10

Cir. 2009); Broussard v. Lafayette City-Par. Consol. Gov’t, 45 F.
Supp. 3d 553, 566 (W.D. La. 2014) (“The Fifth Circuit has yet to
extend the ‘materially adverse’ standard of Burlington Northern to
employment-related

retaliation

provisions

brought

for

Constitutional violations.”); Jackson v. Tex. S. Univ., 997 F.
Supp. 2d 613, 629 (S.D. Tex. 2014) (noting that the Fifth Circuit
has

not

decided

whether

the

Title

VII

standard

for

adverse

employment actions established in Burlington applies in First
Amendment retaliation claims).
Because the Fifth Circuit has not held otherwise, the Court
finds that the standards articulated in Breaux v. City of Garland
and Benningfield v. City of Houston are the appropriate standards
to determine whether a public employee has suffered an adverse
employment action in the context of a First Amendment retaliation
claim. 9 See Collins v. Jackson Pub. Sch. Dist., 609 F. App’x 792,
795 (5th Cir. 2015) (unpublished) (“[The Fifth Circuit] takes a
‘narrow view of what constitutes an adverse employment action. .
. .”) (citing Breaux v. City of Garland, 205 F.3d 150, 157 (5th

9 Plaintiff cites to Thomas v. Kent, 401 F. App’x 864 (5th Cir. 2010) which he
argues proves that the Fifth Circuit has adopted the Burlington standard for
adverse employment actions in First Amendment retaliation cases. However, in
Thomas, the plaintiff did not assert a First Amendment retaliation claim. Rather
the plaintiff asserted a Title VII retaliation claim. Id. at 864-66.
Accordingly, Thomas is inapplicable to this case to the extent that Plaintiff
argues the Fifth Circuit has adopted Burlington as the proper standard for
adverse employment actions in First Amendment retaliation cases. The Fifth
Circuit’s most recent First Amendment retaliation case discussing adverse
employment actions and the Burlington standard is Gibson I, which clearly stated
that the Fifth Circuit has not yet decided whether the Burlington standard for
adverse employment actions also applies to First Amendment retaliation cases.

11

Cir. 2000)); Benningfield v. City of Houston, 157 F.3d 369, 376
(1998) (noting that the Fifth Circuit has declined to expand the
list of actionable adverse actions, even though some may have a
chilling effect on the exercise of free speech). Benningfield, a
First Amendment retaliation case, held that “[a]dverse employment
actions are discharges, demotions, refusals to hire, refusals to
promote, and reprimands.” 157 F.3d at 376. Similarly, in Breaux,
also a First Amendment retaliation case, the Fifth Circuit held
that the following actions are not adverse employment actions:
mere accusations or criticisms, 10 investigations, 11 psychological
testing, 12 false accusations, 13 and polygraph examinations that do
not have adverse results for the plaintiff. 14 205 F.3d at 157-58
(emphasis added). More specifically, in Breaux, the plaintiffs
alleged that they suffered an adverse employment action when their
superior ordered an internal investigation after the plaintiffs
made certain public allegations. 205 F.3d at 158. The Fifth Circuit
held

that

“investigating

alleged

violations

of

departmental

policies . . . are not adverse employment actions.” 15 Id.

10

Harrington v. Harris, 118 F.3d 359, 366 (5th Cir. 1997).
Pierce v. Tex. Dep’t of Crim. Justice, Institutional Div., 37 F.3d 1146, 1150
(5th Cir. 1994).
12 Benningfield, 157 F.3d at 376.
13 Colson v. Grohman, 174 F.3d 498, 511 (5th Cir. 1999).
14 Pierce, 37 F.3d at 1150.
15 Plaintiff’s alleged adverse employment action in this case and Breaux are
alike, which is even more reason to apply the adverse employment standard
articulated therein without clear directive from the Fifth Circuit to the
contrary.
11

12

Here,

Plaintiff

alleges

that

he

suffered

an

adverse

employment action when Lober issued the notice of investigation
into Plaintiff’s communications with Franzo and Rester. Plaintiff
further alleges that the investigation was to decide whether such
communication violated Louisiana civil service law or District No.
3’s policies. 16 As to Lober, Plaintiff only alleges that the
internal investigation was an adverse employment action. But, as
explained above, even accepting Plaintiff’s allegations as true,
“internal

investigations

do

not

constitute

adverse

employment

actions” in the context of First Amendment retaliation claims in
the Fifth Circuit. Ortego v. Dep’t of Transp., No. 13-836, 2014 WL
12521695, at *6 (E.D. La. Feb. 18, 2014) (“Internal investigations
do not constitute adverse employment actions.”) (citing Breaux,
205 F.3d at 158-61). 17 Accordingly, Plaintiff’s First Amendment
freedom of association retaliation claim against Defendant Lober
must be dismissed. See Jackson, 997 F. Supp. 2d at 649 (dismissing
the

plaintiff’s

First

Amendment

retaliation

claim

on

a

Rule

12(b)(6) motion to dismiss where the plaintiff failed to state a
claim that she suffered an adverse employment action under the
Fifth Circuit’s standards). 18

16

R. Doc. 1 at 5.
Ortega was decided approximately eight years after Burlington but still cited
to Breaux for the position that, in the context of First Amendment retaliation
claims, internal investigations do not constitute adverse employment actions.
18 Because the Court has determined that the internal investigation was not an
adverse employment action, the Court does not reach the issue of qualified
immunity on this claim as to Lober. See Jackson, 997 F. Supp. 2d at 650.
17

13

2.

Plaintiff’s First Amendment Freedom of Speech Retaliation
Claim against All Defendants
To

succeed

on

his

First

Amendment

freedom

of

speech

retaliation claim, Plaintiff must show that “(1) he suffered an
adverse employment action; (2) he spoke as a citizen on a matter
of public concern; (3) his interest in the speech outweighs the
government’s

interest

in

the

efficient

provision

of

public

service; and (4) the speech precipitated the adverse employment
action.” Rodriguez v. City of Corpus Christi, No. 16-41004, 2017
WL 1476877, at *2 (5th Cir. Apr. 25, 2017) (quoting Wilson v.
Tregre, 787 F.3d 322, 325 (5th Cir. 2015)). Here, Defendants only
argue that Plaintiff did not speak on a matter of public concern. 19
Whether speech addresses a matter of public concern is a question
of law to be resolved by the court. Id. (citing Graziosi v. City
of Greenville, Miss., 775 F.3d 731, 736 (5th Cir. 2015)). “Whether
an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement,
as revealed by the whole record.” Salge v. Edna Indep. Sch. Dist.,
411 F.3d 178, 186 (5th Cir. 2005) (quoting Connick v. Myers, 461
U.S. 138, 147-48 (1983)). Public concern is something that is
subject of legitimate news interest. Marceaux v. Lafayette CityPar. Consol. Gov., 921 F. Supp. 2d 605, 634 (W.D. La. 2013) (citing

19

R. Doc. 14-1 at 12 n.27.
14

Oscar Renda Contracting, Inc. v. City of Lubbock, Tex., 463 F.3d
378, 382 (5th Cir. 2006)). It is well-established “that speech
relating to official misconduct or racial discrimination almost
always involves a matter of public concern.” Charles v. Grief, 522
F.3d 508, 514 (5th Cir. 2008). Moreover, “speech ‘that potentially
affects public safety relates to the public concern.’” Davis v.
Allen Par. Serv. Dist., 210 F. App’x 404, 410 (5th Cir. 2006)
(quoting Kennedy v. Tangipahoa Par. Library Bd. of Control, 224
F.3d 359, 373 (5th Cir. 2000)).
Plaintiff’s

complaint

alleges

two

separate

instances

of

speech were on matters of public concern. First, Plaintiff alleges
that the May 2016 union letter was on a matter of public concern.
Second, Plaintiff alleges that his communication with Rick Franzo
and Cindy Rester was on a matter of public concern. The Court shall
address these two instances of speech in turn.
a.

May 2016 Union Letter

Plaintiff alleges that the May 2016 union letter stated that
the union had taken a “vote of no confidence” in Sicard, and that
Sicard

violated

Louisiana

civil

service

law, 20

by

failing

to

perform the duties of his position and acting in a discourteous or
wantonly offensive nature. 21 Plaintiff alleges that the union
letter included the following examples of misconduct: (1) Sicard

20
21

La. Rev. Stat. § 33:2560.
R. Doc. 1 at 5.
15

posted

a

picture

of

himself

wearing

a

Hitler

mustache

while

performing the Heil Hitler salute, (2) Sicard performed the Heil
Hitler salute in person, (3) Sicard used racial slurs, (4) Sicard
used sexually explicit innuendos to disparage the union, and (5)
Sicard mismanaged the staffing of ambulance operations and fire
protections. 22
i.

Content

The Court finds that Plaintiff has sufficiently alleged that
the content of the May 2016 union letter was on a matter of public
concern. The content of speech concerns a matter of public concern
“[i]f releasing the speech to the public would inform the populace
of more than the fact of an employee’s employment grievance. . .
.” Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001).
Much

of

the

May

2016

union

letter

addresses

an

employment

grievance, e.g., racial slurs and inappropriate gestures by a
superior. However, Plaintiff’s complaint also alleges that Sicard
mismanaged
protections.

the

staffing

Accordingly,

of

ambulance

the

May

2016

operations
union

letter

and

fire

contains

“mixed speech,” i.e., speech involving matters of public concern
as well as employees’ private, personal interests. See Stotter v.
Univ. of Tex. at San Antonio, 508 F.3d 812, 825-26 (5th Cir. 2007).
Further, even though the allegation of understaffing is one of

22

R. Doc. 1 at 5.
16

several statements in the union letter, “even a mere scintilla of
speech regarding a matter of public concern is sufficient to treat
the entire communication as mixed speech.” Gibson II, 838 F.3d at
485 (quoting Stotter, 508 F.3d at 826). Assuming the allegation
that Sicard mismanaged the staffing of ambulance operations and
fire protections is true, as the Court must, understaffing of
ambulance

operations

and

fire

protections

potentially

affects

public safety and therefore relates to a matter of public concern.
Davis, 210 F. App’x at 410; see also Moore v. City of Kilgore,
Tex., 877 F.2d 364, 370 (5th Cir. 1989) (“The public, naturally,
cares deeply about the ability of its Fire Department to respond
quickly

and

effectively

to

a

fire.

If

staffing

shortages

potentially threaten the ability of the Fire Department to perform
its

duties,

people

information.”).

in

Although

the

community

scarce,

want

Plaintiff’s

to

receive

reference

to

such
the

understaffing of ambulance operations and fire protections is
sufficient at this stage of the proceedings to demonstrate that
the content of Plaintiff’s speech addressed a matter of public
concern. Cf. Stotter, 508 F.3d at 826 (finding a single sentence
buried within a four-page memo discussing the alleged misuse of
benefits was insufficient to bring speech within the protected
realm of the First Amendment). Accordingly, this factor weighs in
favor of finding that Plaintiff’s speech was on a matter of public
concern and entitled to First Amendment protection.
17

ii.

Context

The Court finds that the context of Plaintiff’s May 2016 union
letter is appropriately characterized as private speech rather
than public speech. Speech is made in the context of a public
concern if made “against a backdrop of widespread debate in the
community”

rather

than

“solely

in

furtherance

of

a

personal

employer-employee dispute.” Gibson II, 838 F.3d at 486-87. “The
audience before whom the employee speaks and whether the employee
speaks in response to an invitation may also be relevant to an
analysis of the context in which an employee’s speech is offered.”
Salge, 411 F.3d at 187 (internal citations omitted). “Typically,
an

employee

speaks

in

furtherance

of

his

personal

employer-

employee dispute when he discusses personnel matters directly
impacting his job or criticizes other employees or supervisors’
job performance.” Id.
Plaintiff’s May 2016 union letter was addressed to the Civil
Service Board to detail why the union had no confidence in Sicard
as Fire Chief. As Fire Chief, Sicard is considered a classified
civil service employee. La. Rev. Stat. § 33:2541(A)(1). Upon
written request, the Civil Service Board must investigate the
conduct and performance of any classified civil service employee,
render judgment, and order appropriate action, if any, be taken.
La. Rev. Stat. § 33:2560(C). As vice-president of the union,
Plaintiff aired grievances about Sicard’s behavior to the Civil
18

Service Board which is capable of reprimanding Sicard, which in
fact it did. Because Plaintiff’s grievance was internal and only
to Sicard’s supervisory authority, this suggests that the speech
was private in context, rather than public. See Davis v. McKinney,
518 F.3d 304, 313 (5th Cir. 2008) (suggesting that if a public
employee only takes his concern up the chain of command then it is
in the context of an employee-employer dispute and private, rather
than public speech); Teague v. City of Flower Mound, Tex., 179
F.3d 377, 383 (5th Cir. 1999). The May 2016 union letter was not
in furtherance of “widespread community debate,” but was merely
submitted

to

the

Civil

Service

Board

in

an

attempt

to

seek

disciplinary actions against Sicard. This speech was primarily in
furtherance

of

an

employer-employee

dispute

regarding

dissatisfaction with Sicard’s behavior toward other employees.
Because the May 2016 union letter contained mixed-speech, and the
context of Plaintiff’s speech was private, this factor weighs
heavily against finding that Plaintiff’s speech was on a matter of
public concern and is entitled to First Amendment protection. See
Gibson II, 838 F.3d at 487 (“In mixed speech cases . . . [the Fifth
Circuit] weigh[s] context and form ‘more heavily.’”).
iii.

Form

Finally, the form of Plaintiff’s May 2016 union letter was
private, rather than public. Plaintiff’s complaint only alleges
that the May 2016 union letter was sent to the Civil Service Board.
19

As explained above, the Civil Service Board is essentially the
highest chain of command when seeking disciplinary action of a
classified civil service employee. Plaintiff does not allege that
the union letter was distributed publicly by newspaper or media
nor to the citizenry at large. Thus, the form of the May 2016 union
letter was private. See Chavez v. Brownsville Indep. Sch. Dist.,
135 F. App’x 664, 676 (5th Cir. 2005) (finding form of speech was
public where the plaintiff did not seek to distribute flyers to
the

press

or

the

citizenry

at

large

outside

of

the

school

district). Once again, because this is a mixed-speech case, the
private form of Plaintiff’s speech weighs heavily against finding
that Plaintiff’s speech was on a matter of public concern. See
Gibson II, 838 F.3d at 487.
iv.

Summary

After balancing the content, context, and form of the May
2016 union letter, the Court finds that the letter was primarily
private in context and in form. Therefore, the May 2016 union
letter was not on a matter of public concern and is not entitled
to constitutional protection. Plaintiff’s First Amendment freedom
of speech retaliation claim against all Defendants is dismissed as
to the May 2016 union letter. 23

23

Additionally, Plaintiff’s First Amendment freedom of speech retaliation claim
as to the May 2016 union letter must be dismissed against Defendant Lober,
because Defendant Lober’s issuance of a notice of investigation does not
constitute an adverse employment action. See supra, Section (1). And, to assert
20

b.

Plaintiff’s Communications with Rick Franzo and Cindy
Rester

Plaintiff’s complaint alleges that his communication with
Rick Franzo and Cindy Rester addressed a matter of public concern
and is constitutionally protected. Plaintiff’s complaint alleges
that

he

invited

Franzo

and

Rester,

members

of

the

Concerned

Citizens of St. Tammany, to attend Sicard’s disciplinary hearing.
Further, Plaintiff alleges that he expressed his concerns to Franzo
about Sicard’s alleged racism and incompetence as Fire Chief and
showed him a picture of Sicard performing the Heil Hitler salute.
As to Rester, Plaintiff’s complaint alleges that he “initiated
communications” with her, invited her to Sicard’s disciplinary
hearing, and later thanked her via text message for attending.
i.
The

Content

content

of

Plaintiff’s

conversation

with

Franzo

and

Rester contained “mixed speech.” But, in total, the content of the
conversations were similar to that which was outlined in the May
2016

union

letter.

Thus,

the

Court

finds

that

Plaintiff

has

sufficiently pleaded that the content of Plaintiff’s communication
with Franzo concerns a public matter, which weighs in favor of
finding that Plaintiff’s speech with Franzo was on a matter of
public concern and is entitled to First Amendment protection. See

a First Amendment retaliation claim, a plaintiff must demonstrate that she
suffered an adverse employment action. Tregre, 787 F.3d at 325.
21

Davis,

210

F.

App’x

at

410;

Moore,

877

F.2d

at

370.

While

Plaintiff’s complaint does not allege specific facts as to the
exact content of his communication with Rester, it is reasonable
to infer that he invited her to Sicard’s disciplinary hearing and
communicated the same reasons expressed to Franzo. See U.S. ex
Rel. Bias v. Tangipahoa Par. Sch. Bd., 816 F.3d 315, 321 (5th Cir.
2016) (citing Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 678)
(noting that courts are permitted to draw reasonable inferences in
determining

whether

a

plaintiff

plausible).

Accordingly,

viewing

has
the

alleged

a

claim

allegations

in

that

is

favor

of

Plaintiff, the Court finds that Plaintiff’s complaint has alleged
sufficient facts to infer that Plaintiff’s communication with
Rester concerned a matter of public concern, which weighs in favor
of finding that Plaintiff’s speech with Rester is entitled to First
Amendment protection. See id.
ii.

Context

The Court also holds that the context of Plaintiff’s speech
to Franzo and Rester is appropriately characterized as public,
rather than private. “Speech on a matter of public concern ‘need
not be made before a public audience, although it may relate to
the public concern if it is made against the backdrop of public
debate.’” Salge, 411 F.3d at 187. The context of Plaintiff’s speech
to Franzo and Rester was public because it was expressed to
governing members of a local community group, Concerned Citizens
22

of St. Tammany. Further, the speech related to matters which may
affect

the

community

such

as

the

mismanagement

of

ambulance

operations and fire protections. Finally, it is of note that
Plaintiff not only expressed his concerns with Sicard as Fire
Chief, but also invited Franzo and Rester to Sicard’s disciplinary
hearing which was required to be open to the public. 24 See La. Rev.
Stat. § 33:2561(B)(1). Thus, Plaintiff’s speech to citizens who
may potentially be affected by Sicard’s actions, or failure to
act, is public rather than private. Accordingly, this factor weighs
heavily in favor of finding that Plaintiff’s speech with Franzo
and Rester was on a matter of public concern and entitled to First
Amendment protection. See Gibson II, 838 F.3d at 487.
iii.

Form

Finally, the form of Plaintiff’s speech also weighs in favor
of protection. As noted by the Fifth Circuit in Modica v. Taylor,
“though not dispositive,” informing persons outside of the normal
chain of command of an employment grievance weighs supports the
contention that the speech was public. 565 F.3d 174, 181 (5th Cir.
2006) (citing cases where the Fifth Circuit has held that not
notifying persons outside of the typical employee-employer chain
of command weighs in favor of finding the speech as an employee
grievance and private). Here, Plaintiff expressed his concern with

24

Both parties agree that Sicard’s disciplinary hearing was open to the public.
23

Sicard’s actions and inactions to members of the public who were
also members of an organization which seeks to represent the people
of St. Tammany parish. Accordingly, this factor weighs in favor of
finding that Plaintiff’s speech was on a matter of public concern
and entitled to protection.
iv.

Summary

Considering the content, context, and form of Plaintiff’s
speech to Franzo and Rester, the Court finds that the communication
was primarily on a matter of public concern in all aspects. 25
However, in order to state a claim for First Amendment retaliation,
Plaintiff must have also suffered an adverse employment action.
Hitt, 301 F.3d at 246. As explained above, Defendant Lober’s notice
of investigation to Plaintiff does not constitute an adverse
employment

action.

See

supra,

Section

(1).

Accordingly,

Plaintiff’s First Amendment freedom of speech retaliation claim,
as it relates to his communication with Franzo and Rester, against
Defendant Lober is dismissed.
3.

Whether Defendant Sicard is Entitled to Qualified Immunity
Defendant Sicard argues he is entitled to qualified immunity

even if Plaintiff’s speech was on a matter of public concern.
Understandably, Plaintiff’s complaint did not address Defendants’

25

Even if the form of Plaintiff’s speech with Franzo and Rester was private,
the Court finds that both the content and context of the speech was public. And
in mixed-speech cases such as this, the context of a plaintiff’s speech weighs
heavily in determining whether such speech is on a matter of public concern.
See Gibson II, 838 F.3d at 487.
24

qualified immunity defense. But “in the Fifth Circuit, to survive
a motion to dismiss a Section 1983 claim against an individual,
the plaintiff must ‘allege the particular facts forming the basis
of

his

claim,

defendant]

from

including

those

successfully

preventing

maintaining

a

[the

individual

qualified

immunity

defense.’” Wilson v. Tangipahoa Pub. Sch. Bd., No. 13-271, 2013 WL
3733471, at *3 (E.D. La. July 15, 2013) (quoting Wicks v. Miss.
State Emp’t Servs., 41 F.3d 991, 994-95 (5th Cir. 1995)). “The
Fifth Circuit has stated that it would be unfair to require a
plaintiff

to

anticipate

the

qualified

immunity

defense

when

drafting a complaint.” Safford v. St. Tammany Par. Life Protection
Dist. No. 1, No. 2-0055, 2004 WL 614498, at *2 (E.D. La. Mar. 26,
2004) (citing Shultea v. Wood, 47 F.3d 1427, 1433-34 (5th Cir.
1995)). “Accordingly, the [Fifth Circuit has] designed a unique
pleading procedure to manage such cases.” Id. (citing Schultea, 47
F.3d at 1433-34). “First, a plaintiff is required to file a short
and plain statement of his complaint relying on more than mere
conclusions.” Id. “A district court may then, in its discretion,
insist that a plaintiff file a reply specifically responding to
the defendant’s qualified immunity defense.” Id. (citing Todd v.
Hawk, 72 F.3d 443, 446 (5th Cir. 1995)). “Vindicating the immunity
doctrine will ordinarily require such a reply, and a district
court’s discretion not to do so is narrow indeed when greater
detail might assist.” Id. (citing Schultea, 47 F.3d at 1434; Reyes
25

v. Sazan, 168 F.3d 158, 161 (5th Cir. 1999) (noting that when faced
with sparse details of claimed wrongdoing by officials, trial
courts should “routinely” require plaintiffs to file a reply under
Rule 7(a) to qualified immunity defenses)).
Plaintiff’s complaint does not allege any facts to defeat
Defendants’ qualified immunity defense. But here, rather than file
an answer to Plaintiff’s complaint, Defendants immediately filed
a motion to dismiss pursuant to Rule 12(b)(6). 26 From the facts
currently alleged in Plaintiff’s complaint, the Court finds that
a reply tailored to Sicard’s qualified immunity defense would be
beneficial. As explained above, the Court has already determined
that

Plaintiff’s

First

Amendment

freedom

of

association

and

freedom of speech retaliation claims against Defendant Lober are
dismissed. However, the Court determined that Plaintiff has stated
a First Amendment freedom of speech retaliation claim against
Defendant Sicard as it relates to Plaintiff’s communication with
Franzo and Rester. Accordingly, Plaintiff is granted leave to file
an

amended

complaint

solely

addressing

Defendant

Sicard’s

qualified immunity defense and Plaintiff’s communications with
Franzo and Rester. See Schultea, 47 F.3d at 1434 (“Vindicating the
immunity doctrine will ordinarily require such a reply, and a
district court’s discretion not to do so is narrow indeed when

26

See R. Docs. 11, 12, 14.
26

greater detail might assist.”); see also Payne v. City of Hammond,
No. 15-1022, 2016 WL 1031341, at *12 (E.D. La. Mar. 15, 2016)
(citing Hawk, 72 F.3d 320) (“Schultea makes it clear that this
two-step process—requiring the plaintiff to file a short and plain
statement of his claim pursuant to Rule 8(a)(2) followed by a more
particularized reply pursuant to Rule 7—is the preferred procedure
preceding consideration of a motion to dismiss on grounds of
qualified immunity.”); Wilson, 2013 WL 3733471, at *7 (granting
the

plaintiff

leave

to

amend

his

complaint

to

address

the

defendant’s qualified immunity defense where plaintiff had not
previously been granted the opportunity amended, and the complaint
was not “simply incurable”).
4.

Plaintiff’s State Law Claim
Plaintiff’s

Louisiana

complaint

Revised

declaratory

Statute

judgment

under

alleges
§

that

23:822,
28

and

U.S.C.

§§

Defendants’

violated

Plaintiff

“seeks

2201

2202

and

a

and

compensation, damages, benefits, equitable and other relief under
42 U.S.C. §1983, and under state law.” 27 Defendants only argues
that Plaintiff’s claim for monetary damages pursuant to Louisiana
Revised

Statute

§

23:822

should

be

dismissed.

Plaintiff

has

clarified that he only seeks injunctive relief pursuant to §

27

R. Doc. 1.
27

23:822. 28 Accordingly, to the extent that Plaintiff sought monetary
damages pursuant to § 23:822, that claim is dismissed. 29

CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendants’ Motion to Dismiss (R.
Doc. 14) is GRANTED IN PART and DENIED IN PART. Specifically,
Plaintiff’s First Amendment freedom of association and freedom of
speech retaliation claims against Defendant Lober are DISMISSED
WITH PREJUDICE. Plaintiff’s First Amendment freedom of speech
retaliation claim, as it relates to Plaintiff’s May 2016 union
letter, against Defendant Sicard is also DISMISSED WITH PREJUDICE.
However, Plaintiff’s First Amendment freedom of speech retaliation
claim, as it relates to Plaintiff’s communication with Rick Franzo
and Cindy Rester, against Defendant Sicard is not dismissed.
IT IS FURTHER ORDERED that Plaintiff is granted leave to file
an

amended

complaint

solely

addressing

Defendant

Sicard’s

qualified immunity defense and Plaintiff’s communications with
Franzo and Rester. Plaintiff’s amended complaint must be filed
within thirty-days (30) from the entry of this order. Defendants

28

R. Doc. 18 at 18-19.
It appears that injunctive relief is permissible for a violation of Louisiana
Revised Statute § 23:822. See Lindberg v. Bossier Par., La., No. 7-641, 2008 WL
4491642, at *7 (W.D. La. Oct. 2, 2008) (“[Louisiana Revised Statute § 23:822]
merely declares that it is against public policy to restrict labor and union
activity and allows a court to enjoin unlawful activity.”). Defendants have not
moved to dismiss Plaintiff’s § 23:822 claim for injunctive relief.

29

28

may then file a responsive pleading within ten (10) days of
Plaintiff’s amended complaint.
IT IS FURTHER ORDERED that to the extent that Plaintiff sought
monetary damages pursuant to Louisiana Revised Statute § 23:822,
that claim is DISMISSED WITH PREJUDICE.
New Orleans, Louisiana this 12th day of May, 2017.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

29