Moore et al v. Smith
Filing
120
ORDER and REASONS granting in part in part to DISMISS Plaintiffs' claims pursuant to La. Rev. Stat. §23:961 and denying in part as to all remaining claims 8 Motion to Dismiss for Failure to State a Claim. Signed by Judge Carl Barbier on 12/19/2018. (jeg)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRYAN MOORE, ET AL.
CIVIL ACTION
VERSUS
No. 17-5219
RANDY SMITH
SECTION: “J”(2)
ORDER AND REASONS
Before the Court are Defendant, Sheriff Randy Smith’s Motion to Dismiss for
Failure to State a Claim (Rec. Doc. 8), an opposition thereto filed by Plaintiffs (Rec.
Doc. 16) and Sheriff Smith’s reply. (Rec. Doc. 54). Having considered the Motion and
legal memoranda, the record, and the applicable law, the Court finds that the Motion
should be DENIED in part and GRANTED in part.
FACTS AND PROCEDURAL BACKGROUND
This matter arises from the 2015 St. Tammany Parish Sheriff’s election in
which Defendant, Randy Smith (‘Sheriff Smith”), challenged the then-incumbent
sheriff, Rodney “Jack” Strain (“former Sheriff Strain”). Plaintiffs 1 served as deputy
sheriffs under Sheriff Strain and campaigned on his behalf during the election.
Specifically, Plaintiffs allege that they solicited votes door-to-door, wore campaign
apparel, distributed yard signs, and attended public fundraisers and events in
Ten deputies originally filed suit against Sheriff Smith in this action. Three deputies, David Hanson,
Jr., David Hanson, Sr., and Tammy Hanson voluntarily dismissed their claims on September 28, 2018.
Another deputy, Clifford Keen, voluntarily dismissed on December 13, 2018. The Plaintiffs are now
Bryan Moore, Robert Juge, Jr., Cheryl Hanson, Sean Beavers, Sterling Hebert, Jr., and James
Franklin.
1
support of Sheriff Strain. Despite their vigorous campaign efforts, Defendant won the
election on November 21, 2015. Pursuant to Louisiana law, Plaintiffs’ terms as
deputies expired automatically when former Sheriff Strain’s tenure of office ended on
July 1, 2016, the date Sheriff Smith was sworn into the office. Upon assuming office
Sheriff Smith did not reinstate Plaintiffs to their former positions as deputy sheriffs,
which Plaintiffs allege to be an act of retaliation by Sheriff Smith because he resented
their support of his political opponent.
On May 25, 2017, Plaintiffs filed suit against Sheriff Smith, individually and
in his official capacity, asserting 42 U.S.C. § 1983 claims for violation of their First
Amendment rights to free speech and political expression. The Plaintiffs also assert
state law violations pursuant to La. Rev. Stat. § 23:961. Additionally, two of the
Plaintiffs 2—Bryan Moore and Cheryl Hanson—filed claims under the Family and
Medical Leave Act (“FMLA”), averring that they were entitled to return to their
positions when their leave ended under Sheriff Smith’s administration because they
were employed by the sheriff’s department under Sheriff Strain at the time they took
their leave. Plaintiffs assert the state law and FMLA claims against Defendant only
in his official capacity.
Defendant filed a Motion to Dismiss arguing that Plaintiffs’ complaint failed to
state any claims upon which relief could be granted. (Rec. Doc. 8.) Plaintiffs filed an
opposition to Defendant’s motion, arguing that the complaint provided more than
Originally, three plaintiffs asserted FMLA claims, but Clifford Keen voluntarily dismissed his FMLA
claim.
2
2
adequate facts to survive a motion to dismiss and requesting leave to amend the
pleadings, if necessary. (Rec. Doc. 16). Defendant filed a reply. (Rec. Doc. 54). The
Motion is now before the Court on the briefs and without oral argument.
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) (internal citations omitted). 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 wellpleaded 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
3
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.
When examining matters of state law, this Court will employ the principles of
interpretation used by the state’s highest court. Am. Int'l Specialty Lines Ins. Co. v.
Rentech Steel LLC, 620 F.3d 558, 564 (5th Cir. 2010). Mindful of Louisiana’s
distinction between primary and secondary sources of law, the Court will begin its
analyses with reliance on the Louisiana Constitution and statutes before looking to
“jurisprudence, doctrine, conventional usages, and equity, [which] may guide the
court in reaching a decision in the absence of legislation and custom.” Shaw
Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 547 (5th Cir. 2004) (quoting La.
Civ. Code. art. 1 rev. cmt. b). If the Court must make an “Erie guess” on an issue of
Louisiana law, the Court will decide the issue the way that it believes the Supreme
Court of Louisiana would decide it. Id. (citation omitted). This Court is not strictly
bound by the decisions of the state intermediate courts and will disregard them if the
Court is “convinced that the Louisiana Supreme Court would decide otherwise.” In re
Katrina Canal Breaches Litig., 495 F.3d 191, 206 (5th Cir. 2007).
DISCUSSION
Collectively, Plaintiffs allege three claims against Chief Smith, each deriving
from a different source of law: (1) § 1983 claims for violation of their First Amendment
rights, (2) state law claims, and (3) claims under the Family and Medical Leave Act
(“FMLA”). While Sheriff Smith attacks the factual basis of some of Plaintiffs’ claims
4
as insufficient and raises qualified immunity, a common argument he raises in
defense to all these claims is the special relationship between sheriffs and deputies
in Louisiana.
Courts have recognized that according to Louisiana law, there is no such thing
as a “Parish Sheriff’s Department”; rather, every newly-elected sheriff creates his
own department, which he leads in his official capacity as a political subdivision of
Louisiana. See, e.g., Liberty Mut. Ins. Co. v. Grant Par. Sheriff's Dept., 350 So. 2d 236,
238 (La. App. 3d Cir. 1977) (overruled on other grounds); see also La. Rev. Stat. §
13:5102(B)(1). Given their status as relatively independent subdivisions of the state,
sheriffs enjoy a great degree of control over their deputies. “The sheriff, and not the
state, hires and fires deputies, exercises direct and indirect supervision and control
over them, fixes their time and place of work, and generally allocates their
responsibility and assigns their duties.” Jenkins v. Jefferson Par. Sheriff's Off., 402
So. 2d 669, 671 (La. 1981); see also Boyer v. St. Amant, 364 So. 2d 1338, 1340 (La.
App. 4th Cir. 1978) (“[A] deputy sheriff has no statutorily prescribed term of office,
but merely serves at the pleasure of the sheriff.”). The term of a deputy expires with
the tenure of the sheriff who hired him. See Adams v. McDougal, 695 F.2d 104, 106
(5th Cir. 1983).
Thus, when Plaintiffs’ commissions expired at the end of former Sheriff
Strain’s term, it was solely within Sheriff Smith’s discretion whether to rehire the
Plaintiffs. Plaintiffs counter that Sheriff Smith’s right not to reappoint them was
constrained by the United States Constitution, Louisiana statutory law, and
5
congressional enactment. The Court must therefore examine in each of these three
contexts what meaning, if any, should be given to the fact that when Sheriff Smith
took office, a new subdivision of the state was effectively formed. The Court will
examine each of Plaintiffs’ claims in turn.
I.
FIRST AMENDMENT CLAIMS UNDER § 1983
Plaintiffs allege that they were improperly dismissed for their support of
Sheriff Smith’s political rival. The U.S. Supreme Court has held that the First
Amendment does not allow “a nonpolicymaking, nonconfidential government
employee [to] be discharged or threatened with discharge from a job that he is
satisfactorily performing upon the sole ground of his political beliefs.” Elrod v. Burns,
427 U.S. 347, 375 (1976) (Stewart, J., concurring). There is no doubt that then, that
the U.S. Constitution does curtail what appears to be the plenary authority of
Louisiana sheriffs in hiring and firing. Adams v. McDougal, 695 F.2d 104, 105-08 (5th
Cir. 1983). Furthermore, the federal courts have long rejected the argument that
newly-elected sheriffs are not subject to this First Amendment limitation simply
because they must rehire deputies at the beginning of their tenure. “For [First
Amendment purposes], there is no difference between firing and declining to reappoint.” Brady, 145 F.3d at 703 (quoting Warnock v. Pecos County, 116 F.3d 776,
779 n. 1 (5th Cir. 1997)). Accordingly, courts have found that a deputy has a valid
claim under § 1983, if he was not re-commissioned because he expressed support for
an elected sheriff’s opponent. See e.g., Smith v. Par. of Washington, 318 F. Supp. 2d
366, 381 (E.D. La. 2004).
6
a. Facial Plausibility of Plaintiffs’ Claims
Sheriff Smith apparently concedes that it would violate the Plaintiffs’
constitutional rights to decline rehiring them on the basis of their political support
for former Sheriff Strain; he instead argues that there is an insufficient factual basis
for their claims. Specifically, Sheriff Smith argues that the § 1983 claims fail, because
each of the Plaintiffs have failed to put forth sufficient facts demonstrating a political
motive behind their respective terminations. 3 Defendant admits that each of the
Plaintiffs provided sufficient factual allegations that they supported Sheriff Strain
during his re-election efforts. However, Sheriff Smith contends that he
recommissioned hundreds of deputies who served under Sheriff Strain, “some of
whom [he] likely would have recognized as supporting former Sheriff Strain.” (Rec.
Doc. 8-1 at 4). Thus, Sheriff Smith argues that the Plaintiffs’ allegations that they
were not recommissioned due to that political activity are “rank speculation.”
Sheriff Smith’s position appears to be that dismissal is appropriate unless a
plaintiff alleges that he flat out told the deputy he was firing him or her out of political
animus. 4 This is obviously does not capture the level of scrutiny applied at the
Sheriff Smith only challenges the plausibility of the last of the four elements of a free speech
retaliation claim: “(1) the plaintiff must suffer an adverse employment decision; (2) the plaintiff's
speech must involve a matter of public concern; (3) the plaintiff's interest in commenting on matters
of public concern must outweigh the defendant's interest in promoting efficiency; and (4) the plaintiff's
speech must have motivated the defendant's actions.” Cox v. Kaelin, 577 Fed. Appx. 306, 310 (5th Cir.
2014) (per curiam) (quoting Finch v. Fort Bend Indep. School Dist., 333 F.3d 555, 563 (5th Cir. 2003)).
4 Sheriff Smith reluctantly conceded that Mr. Keen’s now-voluntarily dismissed claim could not be
dismissed under 12(b) only because the complaint alleges, “During one of the first meetings between
Defendant and Sheriff Strain after the election, Defendant told Sheriff Strain that he would not be
renewing the commissions of Mr. Keen (and Brad Hassert) because of their support for Sheriff Strain
during the campaign.” (Rec. Doc. 1 at 10).
3
7
12(b)(6) stage. Moreover, direct evidence of discriminatory intent is not necessary to
prevail even at trial. C.f. Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir. 1998)
(considering sufficiency of evidence for a § 1981 claim). “In this, as in other, areas of
the law a case may be built entirely out of circumstantial evidence.” See id.
Circumstantial evidence, such as the complaint’s allegation that Sheriff Smith
threatened to fire Robert Juge Jr., Sterling Hebert, and James Franklin on August
20, 2015 while they attended a pep rally at the Slidell City Auditorium. Each of the
three wore a shirt to the rally expressing his support for former Sheriff Strain.
Plaintiffs allege that then-candidate Smith approached the three deputies and
“pointed his finger . . . and said[,] ‘you’re fired.’” (Rec. Doc. 1 at 12). Upon being
questioned about this bizarre remark, Defendant allegedly laughed and walked away.
Given what is alleged in the pleadings and drawing all reasonable inferences for
Plaintiffs, the Court infers this encounter as an indication that Sheriff Smith was
planning vindication against his political opponents before he took office. 5
Sheriff Smith points out that not all the Plaintiffs offer such an anecdote, but
The problem with this factual support, says Sheriff Smith, is that he had not yet been elected and
didn’t actually have the power to fire the deputies at the time he made the statement. (Rec. Doc. 8-1
at 5). That argument is not persuasive. In this case, Plaintiffs must show they were improperly
dismissed because of their political affiliations. Technically, Plaintiffs were not “fired” by Sheriff
Smith, rather they were never re-appointed once Sheriff Smith took office on July 1, 2016—though
that distinction has no legal import here. Therefore, any evidence of an unconstitutional motivation
will necessarily be from the period before Sheriff Smith took office. That wrinkle is typical of suits
where deputies allege retaliation for “backing the wrong horse.” See, e.g., Brady v. Ft. Bend County,
145 F.3d 691, 713 (5th Cir. 1998) (finding that defendant sheriff’s pre-election statements regarding
the jobs of his rival’s supporters contributed to the “ample evidentiary support” for the jury’s finding
that decision to not re-appoint deputies was politically motivated). In fact, the timing of the conduct
more strongly suggests an improper motive. Because Sheriff Smith told the Plaintiffs “you’re fired”
before he was elected, and therefore presumably before he was in a position to review personnel records
and make prudent staffing decisions, a political motivation is a highly plausible explanation of his
statement.
5
8
this suggestion that the Court should dissect the complaint and examine every single
allegation seriatim is misguided. “The complaint should be read as a whole, not
parsed piece by piece to determine whether each allegation, in isolation, is plausible.”
Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009), Vila v. Inter-Am.
Inv., Corp., 570 F.3d 274, 285 (D.C. Cir. 2009) (allegations should be “[v]iewed in their
totality”). Just because some Plaintiffs lack a “smoking gun” in the form of a quote by
Sheriff Smith demonstrating an intent to exercise retaliation retaliate, does not mean
their claims are without factual support. See Tellabs, Inc. v. Makor Issues & Rights,
Ltd., 551 U.S. 308, 324 (2007).
“A complaint must contain enough facts ‘to raise a reasonable expectation that
discovery will reveal evidence of the claim or element.’” See Porter v. Valdez, 424 Fed.
Appx. 382, 387 (5th Cir. 2011) (quoting Twombly, 550 U.S. at 556). The Fifth Circuit
found this standard was met in Porter v. Valdez, where plaintiff deputies alleged facts
indicating that a defendant sheriff knew plaintiffs were outspoken supporters of the
sheriff’s political opponent and the sheriff transferred the plaintiffs to less prestigious
positions within 40 days of the election. Id. (finding “a causal nexus exists for a First
Amendment retaliation claim, given their transfers occurred shortly after the
Sheriff's re-election”). Therefore, plaintiffs in some cases can support a claim of
political retribution primarily on mere temporal proximity. Id. (citing Swanson v.
Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.1997)).
In this case there was a significant lapse of time between Plaintiffs’ political
activities during the campaign and any action or inaction by Sheriff Smith but only
9
because there was a delay of approximately seven months between the election and
Sheriff Smith being sworn in on July 16, 2016. (Rec. Doc. 8-1 at 5). Because it appears
from the complaint that Sheriff Smith took the retributive action as soon as he was
able, this Court cannot say that the alleged protected speech and the act of dismissal
were not temporally proximate. Additionally, as in Porter, Plaintiffs have alleged
lengthy and prestigious service. Id.
Thus, considering the Plaintiffs’ typically long lengths of service, their
undeniably outspoken political activity, the timing of allegedly retaliatory acts, and
the alleged statements by Sheriff Smith, the Court finds that the Plaintiffs have set
forth plausible free speech retaliation claims.
b. Qualified Immunity
Sheriff Smith argues that regardless of whether there is a sufficient factual
basis for Plaintiff’s claims, the claims alleged against the Sheriff in his individual
capacity must nonetheless be dismissed on the grounds of qualified immunity. To
defeat the qualified immunity defense at this stage, Plaintiffs must plead sufficient
facts to make it plausible that Defendant’s conduct: “(1) violated a ‘clearly established
federal constitutional right;’ and (2) was not ‘objectively reasonable in light of clearly
established law.’” Cox v. Kaelin, 577 F. App'x 306, 313 (5th Cir. 2014) (per curiam)
(citing Nunez v. Simms, 341 F.3d 385, 387 (5th Cir. 2003)).
Sheriff
Smith
argues that the law is unclear on when a deputy may be terminated for political
reasons and that Sheriff Smith therefore acted reasonably when he effectively
dismissed the Plaintiffs.
10
Parties agree that the Fifth Circuit’s opinion in Brady v. Fort Bend County
controls in this case, they merely dispute its import. Plaintiffs assert that under
Brady they have a clearly established right to support a candidate for the sheriff’s
office pursuant to the First Amendment and are thereby protected against politically
motivated termination. (Rec. Doc. 16 at 11) (citing Brady, 145 F.3d at 713). Defendant
disagrees and argues that Brady v. Fort Bend County states no absolute rule but sets
forth a nuanced analysis which turns on a balancing test. (Rec. Doc. 8-1 at 8).
In Brady, a Democratic candidate for sheriff, Molina, ran against the
incumbent Republican sheriff and won. 145 F.3d at 697. The plaintiffs in that case
served as deputies under the incumbent sheriff and actively supported his campaign
by attending rallies, posting signs, and going door to door; they did these activities
off-duty and without apparent animosity towards Molina. Id. at 697, 709. Within a
couple of months of the election, Molina notified the plaintiffs he would not be
reappointing them. The plaintiffs filed suit, alleging unconstitutional political
retaliation.
When Fifth Circuit heard the case in 1998, it was necessary for the court to
acknowledge evolving jurisprudence in the area of free speech retaliation. Id. at 704706. The Court of Appeals noted that its precedents established a spectrum of cases—
on one end were cases concerning public positions where political considerations were
appropriate to deciding staffing and on the other end were cases involving employees
who did not perform policymaking functions and thus political considerations were
improper. Id. at 705. Accordingly, the Fifth Circuit found it was required to weigh the
11
government’s interest in effective service, against the deputies’ interest in freedom of
speech. To aid its analysis, the appellate court considered five factors. 6 Id. at 707.
Ultimately, the Fifth Circuit concluded that given the facts before it, the factors
“militate[d] strongly in favor of a conclusion that the Plaintiff’s political interest in
political activity in support of [the incumbent sheriff] outweighed the County’s
interest in efficiencies of service.” Id. at 709.
The Court agrees that Pickering/Connick balancing is the appropriate
analysis for determining whether an employer can properly consider an employee’s
political expression in making employment decisions. However, the mere fact that
this flexible test governs generally, does not mean that a public employer can always
claim justifiable ignorance as to whether the First Amendment protects his or her
employees. See, e.g., Kinney v. Weaver, 367 F.3d 337, 358-369 (5th Cir. 2004) (en banc)
(finding only after extensive analysis that the Pickering test was appropriate and that
it weighed in favor of plaintiff police instructors but still finding that qualified
immunity did not protect defendants). While there may have been some ambiguity
two decades ago as to whether a sheriff may not reappoint deputies for supporting
his political opponent, sheriffs such as Defendant benefit from the clarity of Brady
The factors: “(1) the degree to which the employee's activity involved a matter of public concern; (2)
the time, place, and manner of the employee's activity; (3) whether close working relationships are
essential to fulfilling the employee's public responsibilities and the potential effect of the employee's
activity on those relationships; (4) whether the employee's activity may be characterized as hostile,
abusive, or insubordinate; (5) whether the activity impairs discipline by superiors or harmony among
coworkers.” See Brady v. Ft. Bend County, 145 F.3d 691, 707 (5th Cir. 1998) (citing Click v. Copeland,
970 F.2d 106, 112 (5th Cir.1992).
6
12
and the cases that follow it. See Brady, 145 F.3d at 708; Cox, 577 Fed. Appx. at 313
(per curiam); see also Smith, 318 F. Supp. 2d at 380.
Although Sheriff Smith lists the applicable factors that this Court would
consider in conducting a balancing test, he does not even begin to suggest that these
factors weigh in his favor. He does not imply that the Plaintiffs were abusive, or that
their political expression at all hampered their performance as deputies. Thus,
because Brady is indistinguishable from the circumstances of this case, it cannot be
said that Sheriff Smith was not given “fair warning” that his alleged conduct violated
the constitution. See Kinney, 367 F.3d at 350, 371-72 (“Although . . . reasonable
officials might not always be able to predict the outcome of a balancing test such as
that used in Pickering cases . . . the illegality of [Sheriff Smith’s] conduct is
sufficiently clear that [he] can fairly be said to have been on notice of the impropriety
of [his] actions.”). Qualified immunity is inapplicable.
II.
STATE LAW CLAIMS
Plaintiffs’ second claim is that they are each entitled for damages on the basis
of a state law provision: La. Stat. Ann. § 23:961. That statute provides:
[N]o employer having regularly in his employ twenty or more employees
shall make, adopt, or enforce any rule, regulation, or policy forbidding
or preventing any of his employees from engaging or participating in
politics. . . . No such employer shall . . . attempt to coerce or influence
any of his employees by means of threats of discharge or of loss of
employment in case such employees should . . . participate in political
activities of any nature or character.
La. Stat. Ann. § 23:961. Violation of the law mandates a criminal penalty—a fine
between $100 and $1000 and a possible prison sentence of up to 6 months. Id. The
13
statute notes that, “[n]othing herein contained shall in any way be construed to
prevent the injured employee from recovering damages from the employer as a result
of suffering caused by the employer's violations of this Section.” Id.
Sheriff Smith argues that this statute provides no vehicle for relief in this case
because, according to Louisiana law, the deputies were never “his employees” as is
specifically required by the statute. (Rec. Doc. 8-1 at 10). He relies on a decision from
the Louisiana Fourth Circuit, Boyer v. St. Amant, 364 So. 2d 1338, 1339 (La. App. 4th
Cir. 1978). In that case a newly-elected sheriff failed to re-appoint deputies who had
campaigned for his political opponent, the incumbent sheriff. Id. The plaintiff-deputy
argued that the sheriff’s termination of his employment was part of a systematic
political purge of all those who failed to support the sheriff and that such action
violated § 23:961. Id. In analyzing the law, the court concluded that deputies who
were not reappointed by a newly-elected sheriff could not sustain a claim for
retaliation under § 23:961. Id. The court’s holding was based on three premises. First,
the Boyer court determined that deputies were appointees not employees, and
without an employer-employee relationship § 23:961 could not apply. Second, there
was no cause of action for wrongful discharge because the deputy was not fired—
plaintiff was merely not re-appointed. Third, the deputy had no contractual rights in
his employment, therefore he has no right to expect nor basis for expecting continued
employment. Id. at 1341.
Few courts have analyzed § 23:961, and Boyer is the only case to consider the
statute with facts similar to those alleged here. Plaintiffs urge this Court disregard
14
Boyer as unpersuasive. They challenge the premise that deputies are “appointees”
rather than employees and point out that Louisiana courts have long recognized
Louisiana sheriffs as employees in the context of vicarious liability. See, e.g., Nall v.
Parish of Iberville, 542 So. 2d 145 (La. App. 1 Cir. 1989), Kahl v. Baudoin, 449 So. 2d
1334 (La. 1984), Jenkins v. Jefferson Parish Sheriff’s Office, 402 So. 2d 669, 671 (La.
1981). As have U.S. courts in certain federal contexts. See Adams v. McDougal, 695
F.2d 104 (5th Cir. 1983) (holding that the employment relationship between a sheriff
and his deputy was sufficient for a § 1981 claim), 7 Smith, 318 F. Supp 2d 366, 379
(E.D. La. 2004) (concluding that the sheriff qualified as an employer for the purposes
The Fifth Circuit’s opinion in Adams v. McDougal is particularly significant because Judge Wisdom,
writing for a unanimous panel, reversed a district court decision which had relied on the reasoning in
Kyles v. Calcasieu Par. Sheriff's Dep't, 395 F. Supp. 1307, 1310 (W.D. La. 1975). Adams, 695 F.2d at
105. The Kyles court had applied state law and concluded that a “plaintiff [deputy] was not an
‘employee’ of the Calcasieu Parish Sheriff’s Office” and therefore the court lacked jurisdiction to hear
the deputy’s complaints under Title VII and section 1981. Kyles, 395 F. Supp. at 1309, 1312. In Adams,
the Fifth Circuit found this adherence to state law misplaced: “To the extent that the Kyles court felt
constrained by a strict reading of Louisiana law regarding the status of deputy sheriffs, that decision
is incorrect.” Adams, 695 F.2d at 107-108. Acknowledging that section 1981 must be construed
according federal and not state law, the Fifth Circuit concluded that “despite the indefinite tenure of
the job of deputy sheriff, the sheriff and his deputies had expectations arising from the deputy's
employment.” Id. at 108.
7
In determining whether § 23:961 applied to deputies, the Boyer court essentially adopted Kyle’s
reasoning as its own. Boyer, 364 So. 2d at 1340-41. It then concluded, “In the absence of an
employer/employee relationship, R.S. 23:961 cannot be applicable.” Id. at 1341. The court further
opined, “Without any contractual rights in his employment, a deputy, or other political appointee, has
no right to expect nor basis for expecting continued employment.” Id. (emphasis added). This reasoning
is obviously at odds with the Fifth Circuit’s in Adams, where the Court found the deputies did have
certain expectations arising from the deputies’ employment. Adams, 695 F.2d at 108 (“The sheriff
promised to pay his deputies a stated salary. In return the deputies promised to perform their jobs.”).
However, the Fifth Circuit’s strong disapproval of the reasoning of Kyles, which the Boyer court
depended upon, arguably only goes as far as federal law is concerned—the Fifth Circuit concluded that
the Kyles court was incorrect in finding it was bound by state law, not that the district court had
interpreted state law incorrectly. Thus, Boyer’s application of state law principles to state law may be
said to remain unchallenged. In any case, for reasons explained above, the Court finds it unnecessary
to reexamine whether deputies are employees or appointees for purposes of state law.
15
of a Title VII claim).
However, assuming that Plaintiffs were “employees” for purposes of this
statute, the particular language of § 23:961 presents another obstacle to applying the
statute in this case. According to the text of the statute, Plaintiffs must show not
just that they were employees but the Defendant’s employees. La. Stat. § 23:961
(“No such employer shall . . . attempt to coerce or influence any of his
employees.”). As noted above, none of the Plaintiffs were ever employed by Sheriff
Smith; as such, he argues that Plaintiffs were at most his potential employees. The
Court noted above that this distinction—between termination and failing to
reappoint—is meaningless where the First Amendment is concerned. Warnock v.
Pecos County, Tex., 116 F.3d 776, 779 n.1 (5th Cir. 1997) (collecting cases).
However, the Court is now considering a state statute and state law controls.
Moreover, although this is a civil suit, § 23:961 carries criminal penalties8 and
“criminal statutes are given a narrow interpretation and any ambiguity in the
substantive provisions of a statute as written is resolved in favor of the accused.”
State v. Carr, 761 So. 2d 1271, 1274 (La. 2000). This Court is empowered to
diverge from Boyer but only if the Court is convinced that is what the Louisiana
Supreme Court would do. In re Katrina Canal Breaches Litig., 495 F.3d 191, 206
Upon careful reading of the § 23:961, the Court is not convinced the Louisiana
(5th Cir. 2007).
A court cannot waffle between opposing interpretations of a statute depending on a civil or criminal
context, so, civil defendants may sometimes benefit from the rule of lenity. See Leocal v. Ashcroft, 543
U.S. 1, 11 n. 8 (2004) (“Because we must interpret the statute consistently, whether we encounter its
application in a criminal or noncriminal context, the rule of lenity applies.”); see also Joffe v. Google,
Inc., 746 F.3d 920, 935 (9th Cir. 2013).
8
16
Supreme Court would apply the statute in a case such as this one, where a defendant
sheriff refused to re-appoint deputies. “[I]nterpretation of any statutory provision
begins with the language of the statute itself.” Arabie v. CITGO Petroleum Corp., 89
So. 3d 307, 312 (La. 3/13/12). “When a law is clear and unambiguous and its
application does not lead to absurd consequences, the law shall be applied as written
and no further interpretation may be made in search of the intent of the legislature.”
La. Civ. Code art. 9. As Sheriff Smith notes, a common sense reading of the statute
does not make clear a sheriff would be liable for policies or conduct affecting deputies
he never hired. Section 23:961 repeatedly hinges the possibility of criminal penalties
on an employer affecting the political activities or affiliations of “his employees.” This
Court does not understand the word “his” preceding “employee” to be meaningless.
See Oubre v. Louisiana Citizens Fair Plan, 79 So. 3d 987, 997 (La. 2011), (recognizing
that every word in a statute is to be given effect). Rather, the Court interprets the
phrase “his employees” to require a direct relationship between the employer and the
employee be demonstrated before § 23:961 can applied. No such direct relationship—
whether it be categorized as employer-employee or appointer-appointee—existed
between Sheriff Smith and Plaintiffs. See Boyer, 364 So. 2d at 1341. Given, that “a
person should not be criminally punished unless the law provides a fair warning of
what conduct will be considered criminal,” the Court is persuaded that the statute
should not be considered applicable against a sheriff who fails to re-appoint deputies
hired by a previous administration. Carr, 761 So. 2d at 1274.
Plaintiffs suggest that finding § 23:961 inapplicable here would have far-
17
ranging consequences but the Court is unpersuaded that its holding will unleash a
parade of horribles on the deputy sheriffs of Louisiana. First, § 1983 obviously already
exists as a powerful deterrent against the alleged conduct of Sheriff Smith. Second,
it is Plaintiffs who ask this court to upset the status quo by diverging from Louisiana
case law that has stood for forty years. Given the specific language of the statute, the
current state of Louisiana law, and Louisiana’s principles of interpretation, the Court
concludes that Plaintiffs’ claims pursuant to § 23:961 must be dismissed.
III.
PLAINTIFF’S CLAIMS UNDER THE FAMILY MEDICAL LEAVE ACT
Finally, Plaintiffs Bryan Moore and Cheryl Hanson allege that their
terminations violate the Family Medical Leave Act. These Plaintiffs took leave
pursuant to the Act before their commissions expired and afterwards were informed
in one way or another not to return to work by the new administration. (Rec. Doc. 1
at 26).
The FMLA requires employers with at least fifty employees to provide up to
twelve weeks of job-protected, unpaid leave to any employee who has worked at least
twelve months for that employer. 29 U.S.C. § 2611, 29 C.F.R. §825.100. An employee
returning from FMLA leave has a right to reinstatement to his position and the
attendant benefits of employment. 29 CFR § 825.216. However, nothing in the FMLA
is to be construed to entitle any employee to “any right, benefit, or position of
employment” other than that “which the employee would have been entitled had the
employee not taken the leave.” 29 U.S.C. § 2614(a)(3). The FMLA is clear that “[a]n
employer must be able to show that an employee would not otherwise have been
18
employed at the time reinstatement is requested in order to deny reinstatement to
that employee.” 29 CFR. § 825.216. However, “[if] an employee was hired for a specific
term . . . the employer has no obligation to restore the employee if the employment
term . . . is over and the employer would not otherwise have continued to employ the
employee.” 29 CFR § 825.216(a)(3).
Citing this language, Sheriff Smith repeats his refrain that, according to Boyer,
Plaintiffs as Louisiana deputy sheriffs have no reasonable expectation of continued
employment because their commission ended with former Sheriff Strain’s. Thus,
Sheriff Smith argues, that Plaintiffs are attempting to “circumvent application of
[their] contract” by taking medical leave. (Rec. Doc. 8-1 at 12). This assertion is
without merit. Plaintiffs do not claim that Sheriff Smith did not have authority not
to reappoint them once they took leave; they claim that the FMLA merely constricts
Sheriff Smith’s discretion to not reappoint them on the basis that they took their
federal medical leave. As noted above, federal courts have long rejected the notion
that sheriffs enjoy unfettered discretion to dismiss deputies. See Brady, 145 F.3d at
703 (“The lack of a reasonable expectation of continued employment is not sufficient
to justify dismissal based solely upon an employee’s private beliefs.” (quoting Branti
v. Finkel, 445 U.S. 507, 512 (1980))). Just as a sheriff’s right to terminate employees
is limited by the Constitution, it is also limited by federal statutory law. While Sheriff
Smith may have had plenary authority not to reappoint Plaintiffs under state law,
“the discretion of the sheriff to dismiss a deputy must yield to” to the Plaintiffs’ right
not to be terminated for taking medical leave. Jolliffe v. Mitchell, 971 F. Supp. 1039,
19
1042 (W.D. Va. 1997) (“Therefore, while plaintiff[s] may have had no property interest
in [their] continued employment in and of itself, [they] did have a property interest,
created by the FMLA, in not being dismissed because of [their] medically necessary
absences.”).
Sheriff Smith also reiterates that the Plaintiffs are not entitled to relief
because the Plaintiffs’ were never his employees—they were former Sheriff Strain’s.
While this argument had merit regarding La. Rev. Stat. § 23:961, it is not necessarily
compelling with regard to the FMLA, because the FMLA’s governing regulations
explicitly define “employer” to include “any successor in interest of a covered
employer.” 29 C.F.R. § 825.104(a). In determining whether Sheriff Smith qualifies as
a successor-in-interest, the Court once again finds itself in another unsettled area of
law where there is little guidance from the circuit courts.
Sheriff Smith argues that he does not qualify as a successor-in-interest per the
Fifth Circuit’s holding in Powe v. May, 62 F. App'x 557 (5th Cir. 2003) (per curiam)
(unpublished). In Powe, the Fifth Circuit considered the claim of a deputy sheriff who
sued the current sheriff for violations of the Fair Labor Standards Act committed by
the former sheriff, whom Powe had worked for. Id. at *1. The Fifth Circuit assumed
without deciding that the successor-in-interest doctrine applied to the FLSA. The
Court noted that three criteria were appropriate to determining imposing successor
liability: “(1) a substantial continuity of business operations from the previous entity
to its successor; (2) notice to the successor; and (3) the successor's ability to provide
relief.” Id. The panel then concluded, “There is insufficient continuity between Sheriff
20
Thompson’s administration and Sheriff May’s administration to justify the
imposition of successor liability.” Id.
Plaintiffs urge this Court to rely not on Powe—it is not binding on this Court—
but the Sixth Circuit’s opinion, Cobb v. Contract Transp., Inc., 452 F.3d 543, 546 (6th
Cir. 2006), instead. Cobb, the plaintiff in that case, was a truck driver who drove
several delivery routes for a Texas trucking company which had a contract with the
U.S. Postal Service to deliver mail. Id. The Texas trucking company lost the contract
on one of Cobb’s long-haul routes to an Iowa trucking company. However, once the
Iowa trucking company won the bid, it hired Cobb to drive the very same route. Cobb
became sick with severe stomach pain a few months into working for his new
employer and he had to miss work to have his gall bladder removed. Cobb’s new
employer sent Cobb a letter informing him he was terminated because he had “made
himself unavailable for work.” Id. Cobb sued, alleging his termination violated the
FMLA. The district court dismissed Cobb’s complaint because he had not worked for
the Iowa trucking company for more than 12 months and was therefore not an
“eligible employee.” Id. at 547-48. The district court found that the three years Cobb
had worked for the Texas trucking company could be considered because there was
no merger or transfer of assets between the two trucking companies and therefore no
continuity of ownership or control between Cobb’s employers. Id.
The Sixth Circuit reversed, finding that a transfer of assets was not required.
Id. at 550. Rather, the Court found that Congress’s intent was to adapt the doctrine
of successor liability from federal labor law cases to the FMLA. Id. The regulations
21
governing the FMLA support this conclusion because they implore courts to use a list
of factors derived under federal labor law to determine successor liability:
(1) Substantial continuity of the same business operations;
(2) Use of the same plant;
(3) Continuity of work force;
(4) Similarity of jobs and working conditions;
(5) Similarity of supervisory personnel;
(6) Similarity in machinery, equipment, and production methods;
(7) Similarity of products and services; and
(8) The ability of the predecessor to provide relief.
29 C.F.R. § 825.107. As 29 C.F.R. § 825.107 notes, these are the factors also used in
cases brought under Title VII and the Vietnam Era Veteran’s Adjustment Act—which
were themselves informed by federal labor law. See Cobb, 452 F.3d at 550-51.
“However, unlike Title VII, whether the successor has notice of the employee’s claim
is not a consideration.” 29 C.F.R. § 825.107. Upon an expansive review of federal labor
law, the Sixth Circuit rejected the Defendant’s assertion that these factors could only
be considered after finding there was a transfer of assets. Id. at 554-57. With that
obstacle removed, the Sixth Circuit quickly found that the factors weighed in favor of
Cobb. Id. at 556-57. (“Plaintiff has carried U.S. mail on the exact same route, with
the exact same relay stops, for the past three years. In reality, it as if Plaintiff works
for the USPS and not for one particular trucking company. Only the management,
not the job, has changed.”).
22
The Court finds Cobb’s reasoning to be very persuasive. The Court agrees with
the Sixth Circuit that determining Sheriff Smith is an “eligible employer” requires
consideration of the factors enumerated in 29 C.F.R. § 825.107. However, the record
is not sufficiently developed to evaluate the factors at this time. Therefore, the Court
cannot say that Plaintiffs have failed to state a plausible claim under the FMLA. See
Jolliffe, 971 F. Supp. at 1042. Thus, dismissal is unwarranted. 9
CONCLUSION
Accordingly,
IT IS ORDERED that Motion to Dismiss for Failure to State a Claim (Rec.
Doc. 8) is GRANTED in part to DISMISS Plaintiffs’ claims pursuant to La. Rev.
Stat. §23:961 and DENIED as to all remaining claims.
New Orleans, Louisiana, this 19th day of December, 2018.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
Although Sheriff Smith raises the issue of qualified immunity as a defense against FMLA claims
alleged against him in his individual capacity, the issue is moot because Plaintiffs allege their FMLA
claims against Sheriff Smith only in his official capacity.
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