Moore et al v. Smith
Filing
241
ORDER granting in part and denying in part 197 Motion for Summary Judgment. The Motion is GRANTED as to Plaintiff Cheryl Hanson's First Amendment retaliation and FMLA claims and Plaintiff Bryan Moore's FMLA claim, and these claims are DISMISSED WITH PREJUDICE. The Motion is DENIED as to all other claims. Signed by Judge Carl Barbier on 7/31/20. (cg)
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 1 of 13
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
BRYAN MOORE, ET AL.
CIVIL ACTION
VERSUS
No. 17-5219
RANDY SMITH
SECTION: “J” (2)
ORDER & REASONS
Before the Court are a Motion for Summary Judgment (Rec. Doc. 197) filed
by Defendant Randy Smith, an opposition thereto (Rec. Doc. 214) filed by Plaintiffs
Sean Beavers, James Franklin, Cheryl Hanson, Sterling Hebert Jr., Robert Juge Jr.,
and Bryan Moore, and a reply (Rec. Doc. 233) by Defendant. Having considered the
motion and 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
This matter arises from the 2015 St. Tammany Parish Sheriff’s election in
which Defendant, Sheriff Randy Smith, challenged the then-incumbent sheriff,
Rodney “Jack” 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 support of Sheriff Strain. Despite their
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.
(Rec. Doc. 76). Another deputy, Clifford Keen, voluntarily dismissed his claims on December 13, 2018.
(Rec. Doc. 117).
1
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 2 of 13
vigorous campaign efforts, Defendant won the election on November 21, 2015. Upon
assuming office, Defendant did not reinstate Plaintiffs to their former positions as
deputy sheriffs, which Plaintiffs allege to be an act of retaliation because Defendant
resented their support of his political opponent.
On May 25, 2017, Plaintiffs filed suit against Sheriff Smith, individually and
in his official capacity, asserting claims for First Amendment retaliation and
violations of Louisiana Revised Statute 23:961. Plaintiffs Bryan Moore and Cheryl
Hanson also bring claims under the Family and Medical Leave Act (“FMLA”). The
Court granted Defendant’s motion to dismiss only as to the state law claims.2
Defendant now seeks summary judgment on the remaining claims.
LEGAL STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as
to any material fact and that the movant is entitled to judgment as a matter of law.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56); Little v.
Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a
dispute as to any material fact exists, a court considers “all of the evidence in the
record but refrains from making credibility determinations or weighing the evidence.”
Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th
Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but
a party cannot defeat summary judgment with conclusory allegations or
2
(Rec. Doc. 120).
2
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 3 of 13
unsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be
satisfied that “a reasonable jury could not return a verdict for the nonmoving party.”
Delta, 530 F.3d at 399.
If the dispositive issue is one on which the moving party will bear the burden
of proof at trial, the moving party “must come forward with evidence which would
‘entitle it to a directed verdict if the evidence went uncontroverted at trial.’” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving
party can then defeat the motion by either countering with sufficient evidence of its
own, or “showing that the moving party’s evidence is so sheer that it may not
persuade the reasonable fact-finder to return a verdict in favor of the moving party.”
Id. at 1265.
If the dispositive issue is one for which the nonmoving party will bear the
burden of proof at trial, the moving party may satisfy its burden by merely pointing
out that the evidence in the record is insufficient with respect to an essential element
of the nonmoving party’s claim. Celotex, 477 U.S. at 325. The burden then shifts to
the nonmoving party, who must, by submitting or referring to evidence, set out
specific facts showing that a genuine issue exists. Id. at 324. The nonmovant may not
rest upon the pleadings but must identify specific facts that establish a genuine issue
for trial. Id. at 325; Little, 37 F.3d at 1075.
DISCUSSION
I.
FIRST AMENDMENT RETALIATION
3
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 4 of 13
Plaintiffs bring claims under 42 U.S.C. § 1983 for First Amendment
retaliation, which require them to show: (1) they suffered an adverse employment
decision; (2) their speech involved a matter of public concern; (3) their interest in
speaking outweighed Defendant’s interest in promoting efficiency; and (4) the
protected speech motivated Defendant’s conduct. Howell v. Town of Ball, 827 F.3d
515, 522 (5th Cir. 2016). Plaintiffs must show that their protected speech was a
“substantial” or “motivating factor” in the adverse employment decisions. Brady v.
Ft. Bend Cty., 145 F.3d 691, 711 (5th Cir. 1998) (quoting Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).3 The parties agree that only the
fourth element, causation, is at issue.
Even if Plaintiffs establish that their protected speech was a substantial or
motivating factor in Defendant’s decisions to terminate them, Defendant may still
avoid liability by showing “by a preponderance of the evidence that [he] would have
made the same decision . . . even in the absence of the protected conduct.” Mt. Healthy,
429 U.S. at 287; see also Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 601 (5th
Cir. 2001). Defendant must do more than articulate legitimate, nonretaliatory
reasons for Plaintiffs’ terminations; he must “prov[e] that [he] would have taken the
same adverse action even in the absence of the improper consideration.” Brady, 145
F.3d at 712. The Fifth Circuit has characterized this burden as an “affirmative
The Fifth Circuit has repeatedly explained that the McDonnell Douglas burden-shifting framework
for Title VII claims does not apply to First Amendment retaliation claims. See, e.g., Charles v. Grief,
522 F.3d 508, 516 n.28 (5th Cir. 2008); Brady, 145 F.3d at 711-12. The applicable Mt. Healthy standard
does not require the plaintiff to establish but-for causation. See Spiegla v. Hull, 371 F.3d 928, 941-42
& n.9 (7th Cir. 2004) (collecting cases and citing, inter alia, Brady, 145 F.3d at 710-11).
3
4
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 5 of 13
defense.” Id. Thus, “summary disposition of the causation issue in First Amendment
retaliation claims is generally inappropriate.” Haverda v. Hays County, 723 F.3d 586,
595 (5th Cir. 2013). But see Beattie, 254 F.3d at 601 (affirming summary judgment
where plaintiff failed to meet “her initial burden of demonstrating that her speech
motivated her discharge”).
In considering Defendant’s motion to dismiss, the Court concluded that the
temporal proximity between Plaintiffs’ support for former Sheriff Strain and
Defendant’s decisions to not recommission them upon taking office, as well as their
lengthy and prestigious service, supported an inference that Defendant terminated
them because of their political activity. 4 See Porter v. Valdez, 424 F. App’x 382, 387
(5th Cir. 2011) (per curiam). Defendant now argues that legitimate, nonretaliatory
reasons motivated his decisions to not recommission Plaintiffs, while Plaintiffs
contend that the proffered reasons are post-hoc justifications. The Court considers
each in turn.
A.
Robert Juge
Defendant contends that his decision to not recommission Juge was based on
Juge “sending offensive, racially charged, and sexist emails to his coworkers” over
two years prior to Defendant taking office and for which Juge was not reprimanded.5
In support, Defendant offers his own affidavit, a Times Picayune newspaper article
(Rec. Doc. 120, at 9-10). The Court previously explained that, although Plaintiffs’ commissions
expired at the end of the former Sheriff’s term, the decisions to not recommission them amounts to
termination under the First Amendment. Id. at 6; see Brady, 145 F.3d at 703; Smith v. Parish of
Washington, 318 F. Supp. 2d 366, 381 (E.D. La. 2004).
5 (Rec. Doc. 197-2, at 9).
4
5
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 6 of 13
describing the incident, copies of the emails, and Juge’s deposition testimony
admitting that he had sent the emails and that no action was taken against him
because of his conduct.6
In response, Plaintiffs offer the affidavits of four individuals who declare that,
before he took office, Defendant told them he was going to fire certain employees due
to their political support for former Sheriff Strain. Calvin Lewis, a former STPSO
employee, stated that Defendant told him on January 11, 2016, two months after the
election and six months before Defendant took office, that he was going to fire Juge,
as well as Beavers, Hebert, and Moore, because of their support for former Sheriff
Strain.7 Lewis further declared that Defendant “never mentioned” he was firing them
for the reasons he now offers.8 Likewise, Fred Oswald, a former STPSO employee who
acted as liaison for the transition between former Sheriff Strain and Defendant,
declared: “I recall Randy Smith being very passionate when discussing Bobby Juge’s
termination and he mentioned numerous times the amount of money and support
that Bobby Juge obtained for former Sheriff Strain in Slidell during the campaign.” 9
Oswald further declared that he could not recall any of Defendant’s proffered reasons
for not recommissioning Plaintiffs being discussed in any of the meetings he attended
during the transition.10 Mike Moore and Craig Young, two local business owners who
(Rec. Doc. 197-3, at 3-6; Rec. Docs. 197-13, 197-16; Rec. Doc. 197-27, at 9-12).
(Rec. Doc. 214-1, at 3).
8 Id.
9 (Rec. Doc. 214-4, at 2).
10 Id.
6
7
6
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 7 of 13
know Defendant personally, make similar declarations in their affidavits regarding
only Juge.11
Plaintiffs also point to the campaign rally in support of former Sheriff Strain
during which Defendant approached Juge, Hebert, and Franklin, pointed his finger
at each, and said, “You’re fired.” To corroborate their testimony, Plaintiffs offer the
affidavits of Jerry P. Miller, a former STPSO employee, and Pam Franklin, the wife
of Plaintiff Franklin, who were at the rally and witnessed the encounter. 12
Additionally, Lewis stated in his affidavit that Defendant called him after the event
and described threatening to fire Juge, Hebert, and Franklin.13
Defendant argues that the declarations of Lewis and Oswald are “inherently
untrustworthy” because they are “both disgruntled former employees of STPSO who
have each filed separate lawsuits against” him. 14 But this is exactly the type of
credibility determination that the Court must refrain from making in deciding a
motion for summary judgment. See Delta, 530 F.3d at 398. Defendant also fails to
address the declarations of Mike Moore, Craig Young, Jerry Miller, or Pam Franklin.
While Defendant further contends that the fact that he retained several other
employees who supported former Sheriff Strain means that Plaintiffs cannot
establish causation, it at most creates a triable issue of fact for the jury, particularly
in light of evidence that Defendant acknowledged he could not fire all of former
(Rec. Docs. 214-2, 214-3).
(Rec. Doc. 214-8, at 1; Rec. Doc. 214-9, at 1).
13 (Rec. Doc. 214-1, at 2).
14 (Rec. Doc. 233, at 8).
11
12
7
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 8 of 13
Sheriff Strain’s supporters.15 See Brady, 145 F.3d at 714-15 (“While this constitutes
probative evidence that [the sheriff] may not have chosen not to rehire the Plaintiffs
because of their political affiliation, it certainly did not compel such a conclusion by
the jury, particularly in light of testimony outlined above that [the sheriff] made
statements indicating that he intended to make employment decisions based upon
political support.”).
Moreover, while Defendant offers ample evidence that Juge sent the emails in
question, he provides little evidence—namely, a self-serving affidavit—that he
decided not to recommission Juge because of the emails. While Defendant’s evidence
establishes that he could have terminated Juge for the offensive emails, it fails to
establish that he would have terminated Juge if he had not supported Defendant’s
political rival. See Haverda, 723 F.3d at 597 (“The issue is not whether [the plaintiff]
could have been demoted for the [the defendant’s proffered reason], but whether he
would have been demoted if he had not engaged in protected speech.”). Further, in
deciding the instant motion, the Court “must disregard all evidence favorable to the
moving party that the jury is not required to believe.” Id. at 591 (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151 (2000)). Accordingly, Defendant
has failed to establish by a preponderance of the evidence that he would have
terminated Juge in the absence of his political support for former Sheriff Strain. See
(Decl. of Fred Oswald, Rec. Doc. 214-4, at 1) (“In those discussions, the issue of some employees
supporting [former Sheriff] Strain came up and Randy Smith said, ‘I can’t fire them all in case someone
decides to sue,’ meaning that he could not fire all the individuals that supported Sheriff Strain.”).
15
8
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 9 of 13
Mt. Healthy, 429 U.S. at 287; Brady, 145 F.3d at 711-12. Summary judgment will be
denied on this claim.
B.
Sterling Hebert, James Franklin, Sean Beavers, & Bryan Moore
As with Juge, Plaintiffs present direct evidence that Defendant was
substantially motivated to not recommission Hebert, Franklin, Beavers, and Moore
because of their political support for former Sheriff Strain. Hebert and Franklin were
at the campaign rally with Juge when Defendant approached them, pointed his finger
at each of them, and said, “You’re fired.” Additionally, Lewis stated that Defendant
told him that he was going to fire Hebert, Moore, and Beavers because they spoke out
against him and supported former Sheriff Strain, 16 and Oswald declared that
Defendant told him that “Moore was ‘too close to [former Sheriff] Strain’ and therefore
had to go.”17
The only evidence Defendant offers to demonstrate that he would have decided
not to recommission these Plaintiffs even if they had not supported his political
opponent is his own affidavit and deposition testimony. Accordingly, genuine issues
of material fact exist, and summary judgment will be denied on these claims.
C.
Cheryl Hanson
Unlike the other Plaintiffs, there is no direct evidence that Defendant decided
not to recommission Hanson because of her political support for former Sheriff Strain.
Therefore, the Court must first consider whether Plaintiffs have submitted evidence
establishing that Hanson’s political support for former Sheriff Strain was a
16
17
(Rec. Doc. 214-1, at 3).
(Rec. Doc. 214-4, at 2).
9
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 10 of 13
substantial or motivating factor in Defendant’s decision to not renew her commission.
See Brady, 145 F.3d at 711.
To support Hanson’s claim, Plaintiffs rely on Hanson’s considerable public
support for former Sheriff Strain, the timing between her protected activity and her
termination, and the fact that other similarly situated employees—deputies with
children in custody of the STPSO—were not terminated. Plaintiffs identify Scott
Winters and Scott Lee as deputies who both had sons incarcerated at the STPSO jail,
were allowed the same visitation rights as Hanson, and were recommissioned by
Defendant once he took office.18 However, Lee was also a supporter of former Sheriff
Strain and was promoted to Captain by Defendant, 19 which undercuts Plaintiffs’
argument. Additionally, while “close timing between an employee’s protected activity
and an adverse action against [her] may provide the causal connection required to
make out a prima facie case of retaliation” for purposes of a motion to dismiss, Porter,
424 F. App’x at 387 (quoting Swanson v. Gen Servs. Admin., 110 F.3d 1180, 1188 (5th
Cir. 1997) (Title VII case)), in the context of a motion for summary judgment,
“[t]iming alone does not create an inference that the termination is retaliatory.”
Beattie, 254 F.3d at 605.20
Accordingly, the Court finds that Hanson has not met her initial burden of
demonstrating that her protected conduct motivated her termination. See id. at 601.
(Rec. Doc. 214-11, at 2-3).
(Affidavit of Captain Scott Lee, Rec. Doc. 197-43, at 3).
20 The Court notes that Porter is unpublished and therefore only persuasive authority, while Beattie is
binding.
18
19
10
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 11 of 13
Therefore, Defendant is entitled to summary judgment on this claim, and this claim
will be dismissed.
II.
FAMILY AND MEDICAL LEAVE ACT
Defendant also seeks summary judgment on Plaintiff Moore’s FMLA claim.21
“To establish a prima facie case of interference under the FMLA, a plaintiff must
show: (1) he was an eligible employee; (2) his employer was subject to FMLA
requirements; (3) he was entitled to leave; (4) he gave proper noti ce of his intention
to take FMLA leave; and (5) his employer denied him the benefits to which he was
entitled under the FMLA.” Caldwell v. KHOU-TV, 850 F.3d 237, 245 (5th Cir. 2017).
Again, the parties agree that only the last element is at issue .
Moore contends he was denied benefits he was entitled to under the FMLA
because he was not restored to an equivalent position at the end of his FMLA leave.
Defendant contends that Moore would have lost his position even had he not taken
FMLA leave and that there is no evidence that his failure to recommission Moore had
anything to do with Moore’s exercise of FMLA leave. Specifically, Defendant asserts
that he chose not to recommission Moore because he lacked the leadership and
supervisory skills necessary for his position and was not respected by his rank and
subordinates. Moore argues that this reason is pretext because Defendant , in his
deposition testimony, could not identify a single person who did not respect Moore
and admitted he did not observe Moore on a day-to-day basis, was not aware of any
Plaintiff Hanson has indicated that she “does not intend to pursue her FMLA interference claim.”
(Rec. Doc. 214, at 34). Accordingly, this claim will be dismissed.
21
11
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 12 of 13
disciplinary action taken against Moore, and did not review Moore’s personnel file
prior to terminating his employment.
“An employer’s failure to restore an employee to the same or equivalent
position gives rise to an entitlement claim under 29 U.S.C. § 2615(a)(1).” Amedee v.
Shell Chemical LP-Geismer Plant, 384 F. Supp. 3d 613, 629 (M.D. La. 2019) (citing
Haley v. All. Compressor LLC, 391 F.3d 644, 649 (5th Cir. 2004)). However, “the fact
that Plaintiff was on leave when [he] received [his] termination letter is not an ipso
facto interference with FMLA rights.” Id. at 631. The Fifth Circuit has made clear
that the FMLA does not impose a strict liability standard on employers. See Shirley
v. Precision Castparts Corp., 726 F.3d 675, 682 (5th Cir. 2013). Accordingly, courts
require plaintiffs bringing FMLA interference claims to demonstrate that they were
prejudiced by the violation. Cuellar v. Keppel Amfels, LLC, 731 F.3d 342, 347 (5th
Cir. 2013) (citing Ragsdale v. Wolverine World Wide, Inc., 535 U.S. 81, 89 (2002)).
“Prejudice exists when an employee loses compensation or benefits by reason of the
violation.” Jones v. Children’s Hosp., 58 F. Supp. 3d 656, 669 (E.D. La. 2014)
(emphasis added).
The strength of Moore’s First Amendment claim dooms his FMLA claim,
because the evidence he submitted shows a single-minded focus by Defendant to
retaliate against Moore for his support for former Sheriff Strain and, as Defendant
points out, there is no evidence that Moore’s termination was motivated by his
exercising FMLA leave. Rather, Moore took his FMLA leave beginning in June
12
Case 2:17-cv-05219-CJB-DPC Document 241 Filed 07/31/20 Page 13 of 13
2016,22 yet Lewis stated that Defendant told him he planned on firing Moore for his
support of former Sheriff Strain as early as January 2016,23 and there is no evidence
that Moore was intending to take FMLA leave at that time. Therefore, Moore has
failed to establish that he was prejudiced by Defendant’s interference with his FMLA
leave, and this claim will be dismissed.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant Randy Smith’s Motion for
Summary Judgment (Rec. Doc. 197) is GRANTED in part and DENIED in part.
The Motion is GRANTED as to Plaintiff Cheryl Hanson’s First Amendment
retaliation and FMLA claims and Plaintiff Bryan Moore’s FMLA claim, and these
claims are DISMISSED WITH PREJUDICE. The Motion is DENIED as to all
other claims.
New Orleans, Louisiana, this 31st day of July, 2020.
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE
22
23
(Rec. Doc. 214-13, at 2).
(Rec. Doc. 214-1, at 3).
13
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?