Bode, et al v. Kenner City, et al

Filing 59

ORDER: IT IS HEREBY ORDERED that Mayor Zahn's 11 Motion to Dismiss Pursuant to Fed. R. Civ. Proc. 12(b)(6) is GRANTED. IT IS FURTHER ORDERED that Chief Glaser's 12 Motion to Dismiss Pursuant to Fed. R. Civ. Proc. 12(b)(6) is DENIED. Signed by Judge Nannette Jolivette Brown on 2/20/2018. (mmv)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GEORGE BODE, et al.

CIVIL ACTION

VERSUS

CASE NO. 17-5483

KENNER CITY, et al.

SECTION: “G” (5)
ORDER

In this litigation, Plaintiffs, who are twelve “unclassified civil service” public employees
of the City of Kenner, Louisiana,1 seek declaratory relief and an injunction barring the City of
Kenner (“the City”), Mayor Ben Zahn in his official capacity (“Mayor Zahn”), and Chief of Police
Michael Glaser in his official capacity (“Chief Glaser”) from enforcing Kenner City Charter
Article I, Section 1.06 (hereinafter, the “Charter Amendment”).2 Pending before the Court are
Mayor Zahn’s “Motion to Dismiss Pursuant to Fed. R. Civ. Proc. 12(b)(6)”3 and Chief Glaser’s
“Motion to Dismiss Pursuant to Fed. R. Civ. Proc. 12(b)(6).”4 Having reviewed the motions, the
memoranda in support and in opposition, the record, and the applicable law, for the reasons that
follow, the Court will grant the motion to dismiss filed by Mayor Zahn and deny the motion to
dismiss filed by Chief Glaser.

1

Rec. Doc. 1 at 3–4. In particular, Plaintiffs are: (1) George Bode, the City of Kenner’s Assistant Director
of Inspections and Code Enforcement; (2) Adam Campo, the City of Kenner’s Clerk of Court; (3) Gerald Dillenkoffer,
an employee of the City of Kenner’s Public Works Department; (4) Wendi Folse, the City of Kenner’s Director of
Personnel; (5) Mary-Sharon Howland, the Assistant to the Mayor, Defendant Ben Zahn; (6) Kenneth Marroccoli, the
City of Kenner’s Director of Parks and Recreation; (7) Theresa Nevels, the City of Kenner’s Director of Purchasing;
(8) Stephen Petit, Jr., an Assistant City Attorney and Kenner City Prosecutor; (9) Johnie Sullivan, an employee of the
City of Kenner’s Recreation Department; (10) Ronald Vitellaro, the City of Kenner’s Director of Fleet Management;
(11) Richard Walther, the City of Kenner’s Director of Inspections and Code Enforcement; and (12) Mike Wetzel, the
City of Kenner’s Director of Finance. Id.
2

Id. at 1–2.

3

Rec. Doc. 11.

4

Rec. Doc. 12.

1

I. Background
A.

Factual Background
Plaintiffs are twelve “unclassified civil servants” employed by the City of Kenner, an

instrumentality of the state of Louisiana.5 In particular, Plaintiffs are political appointees who
“serve at the pleasure of the Mayor” in various municipal positions, such as the Assistant to the
Mayor, the City Prosecutor, and the Clerk of Court.6 “Classified” civil servants in the City of
Kenner receive certain employment protections under the Civil Service System.7 By contrast,
“unclassified” civil servants are employed at will by the Mayor.8 Thus, newly-elected Mayors may
appoint new individuals to fill those “unclassified” positions and replace the individuals selected
by the previous administration.9
On June 7, 2012, the Kenner City Council approved Resolution No. B-16261, which called
an election to amend the Kenner City Charter to include the instant Charter Amendment.10 The
Charter Amendment, titled “Apolitical Workforce,” provides: “Section 1.06. The nonelected
employees in the employment of the City of Kenner shall not participate in any political activity
on behalf of any city candidate in City of Kenner elections.”11 Nonelected employees include both
classified and unclassified employees.12 The term “political activity” is not defined in the Charter

5

Rec. Doc. 4-1 at 1–2; Rec. Doc. 18 at 2; see also Rec. Doc. 1 at 3–4.

6

Rec. Doc. 18 at 2; see Rec. Doc. 4-1 at 2; Rec. Doc. 1 at 3–4.

7

Rec. Doc. 4-1 at 4, 14; see also Rec. Doc. 18 at 2; Rec. Doc. 1 at 5–6, 15–16.

8

See Rec. Doc. 4-5 at 2; see also Rec. Doc. 4-4 at 2; Rec. Doc. 1 at 10.

9

See Rec. Doc. 4-5 at 2; Rec. Doc. 4-4 at 2; Rec. Doc. 1 at 10.

10

Rec. Doc. 18 at 3.

11

Id.; see Rec. Doc. 1-1.

12

Rec. Doc. 1-1.

2

Amendment.13 On November 6, 2012, 70 percent of the participating voters of the City of Kenner
voted in favor of adopting the Charter Amendment and 30 percent voted against it.14 Prior to the
enactment of the Charter Amendment, the Kenner City Mayor had vetoed an ordinance in October
2011 seeking to prohibit unclassified employees of the City of Kenner from engaging in any
political activity, and a similar attempt to limit City employees’ political activity also failed in
1999.15
Prior to the enactment of the Charter Amendment, unclassified City employees were
already prohibited from engaging in political activity during regular employment hours pursuant
to Section 2-90 of the Kenner Code of Ordinances.16 Section 2-90 directly defined the term
“political activities” “[f]or purposes of this section.” 17 Classified City employees were subject to
the specific prohibitions on political activity established by the City’s Civil Service System in

13

Rec. Doc. 18 at 3.

14

Id.

15

Id. at 4. See Rec. Doc. 1 at 9.

16

Rec. Doc. 4-3. Section 2-90 of the Kenner Code of Ordinances provides in full:

No elected official, director, supervisor, or other employee of the City of Kenner shall hire,
fire, promote, refuse to promote, or take any other job action against any City of Kenner employee
or job applicant because of that employee's participation, or refusal to participate, in any election or
other political activities.
No elected official, director, supervisor, or other employee of the City of Kenner shall coerce
or threaten any employee with any job action because of that employee’s participation, or refusal to
participate, in any election or other political activities.
(a) For purposes of this section, political activities include, but are not limited to, support
or nonsupport of any candidate for public office, fundraising activities, support or
nonsupport, of any referendum or millage or similar proposition, or participation in
the activities of any political party.
(b) Provided, however, that no employee is allowed to engage in political activity while
performing their job duties for the City of Kenner during regular employment hours.
17

Id.

3

Section 8.04(B) of the Kenner City Charter as well.18 Section 8.04(B) defined “political activity”
“[a]s used in the Part” and lists certain political activities that classified City employees could and
could not do under that prior ban.19
As stated in the parties’ joint stipulations, although Plaintiffs have “no desire” to engage in
political activity during work hours, Plaintiffs “have a genuine desire to express themselves on
political issues while outside of work hours, and would like to participate in these elections while
‘off the clock.’”20 After the adoption of the Charter Amendment, Plaintiffs were prohibited from
supporting local candidates in the 2016 Kenner City mayoral and City Council special election.21
Plaintiffs will also be prevented by the Charter Amendment from supporting City candidates in
the upcoming 2018 Kenner City elections.22 Plaintiffs have expressed that they do not know which

18

See Rec. Doc. 31. In particular, Section 8.04(B) provides:

B. Party Membership; Elections. No member of the Kenner City Civil Service Board, or
employee covered under this Section shall participate or engage in political activity; be a candidate
for nomination or election to public office or be a member of any national, state, or local committee
of a political party or faction; make or solicit contributions for a political party, faction or candidate;
or take active part in the management of the affairs of a political party, faction, candidate or any
political campaign, except to exercise his right as a citizen to express his opinion privately, to serve
as a commissioner or official watcher at the polls, and to cast his vote as he desires.
(1) Contributions. No person shall solicit contributions for political purposes from any
classified employee or use or attempt to use his position in City service to punish or coerce the
political action of a classified employee.
(2) Political Activity Defined. As used in the Part, “political activity” means an effort to
support or oppose the election of a candidate for political office or to support a particular political
party in an election.
19

Id. at 61.

20

Rec. Doc. 18 at 2.

21

See Rec. Doc. 4-4 at 2; Rec. Doc. 4-5 at 2; Rec. Doc. 4-6 at 2.

22

See Rec. Doc. 4-4 at 2; Rec. Doc. 4-5 at 2; Rec. Doc. 4-6 at 2.

4

activities are prohibited by the Charter Amendment’s restrictions on engaging in “political
activity” and which activities are not.23
The City of Kenner will hold its next primary election for Mayor, Police Chief, and City
Council on March 24, 2018, with the general election set for April 28, 2018.24 Qualifying for that
election begins January 3, 2018.25 To date, there are no known cases where the Charter
Amendment’s prohibitions have resulted in any adverse employment action in the City of
Kenner.26
B.

Procedural History
Plaintiffs filed a complaint in this matter on June 1, 2017.27 On June 20, 2017, Plaintiffs

filed a motion for a preliminary injunction.28 On June 27, 2017, Mayor Zahn and Chief Glaser
each filed a motion to dismiss.29 On July 11, 2017, Plaintiffs filed memoranda in opposition to
both motions to dismiss.30
On July 5, 2017, the Court held a hearing on Plaintiffs’ motion for a preliminary
injunction.31 On July 26, 2017, the Court granted Plaintiffs’ motion and enjoined Defendants and

23

See Rec. Doc. 4-4 at 1–2 (Plaintiff concurring with the facts alleged in the Plaintiffs’ complaint and stating
that the Charter Amendment fails to give him notice as to what activity is prohibited); Rec. Doc. 4-5 at 1–2 (same);
Rec. Doc. 4-6 at 1–2 (same); see also Rec. Doc. 1 at 8, 10 (Plaintiffs alleging that they are fearful of retribution for
violating the Charter Amendment and are unclear on what the Charter Amendment prohibits).
24

Rec. Doc. 18 at 2.

25

Id.

26

Id. at 4.

27

Rec. Doc. 1.

28

Rec. Doc. 4.

29

Rec. Docs. 11, 12.

30

Rec. Docs. 35, 36.

31

Rec. Doc. 30.

5

their agents from enforcing Kenner City Charter Article I, Section 1.06 until there is a final
judgment in this case.32
II. Parties’ Arguments
A.

Motion to Dismiss Filed by Mayor Zahn
1.

Mayor Zahn’s Arguments in Support of the Motion to Dismiss

In the motion to dismiss, “Mayor Zahn asserts that the claims against him should be
dismissed as redundant because any claim against him in his official capacity is equivalent to a
suit against the City.”33 Mayor Zahn states that he “takes no position regarding the legality of
Section 1.06.”34 Mayor Zahn contends that he respects both “the will of the citizens of Kenner in
wanting an apolitical City workforce” and “the right to free speech enjoyed by all citizens,
including employees of the City who are not afforded civil service protections.”35 Nevertheless,
Mayor Zahn avers that he is not a proper party to this litigation.36 Mayor Zahn argues that Plaintiffs
cannot assert claims against him in his official capacity in addition to asserting the same claims
directly against the City.37 Therefore, Mayor Zahn contends that the claims against the Mayor in
his official capacity are redundant and should be dismissed.38

32

Rec. Doc. 42.

33

Rec. Doc. 11-1 at 1.

34

Id.

35

Id. at 1–2.

36

Id. at 2.

37

Id. at 4.

38

Id.

6

2.

Plaintiffs’ Arguments in Opposition to the Motion to Dismiss

In response, Plaintiffs argue that Mayor Zahn is responsible for enforcing the Charter
Amendment as it relates to Plaintiff’s employment.39 Plaintiffs concede that the claims against
Mayor Zahn are identical to the claims against the City of Kenner.40 However, because Plaintiffs
have sought injunctive relief against Mayor Zahn, Plaintiffs contend that he should remain a
defendant in this matter pursuant to Ex Parte Young.41 Therefore, because Mayor Zahn does not
deny that he can initiate adverse employment action against Plaintiffs for violations of the Charter
Amendment, Plaintiffs contend that a suit against him in its official capacity is warranted.42
B.

Motion to Dismiss Filed by Chief Glaser
1.

Chief Glaser’s Arguments in Support of the Motion to Dismiss

In the motion to dismiss, Chief Glaser contends that he “is not a proper party to this
litigation because he is not the appointing authority of Plaintiffs and he has no jurisdiction or other
authority to enforce Section 1.06 against Plaintiffs.”43 Chief Glaser asserts that the remedy for
violations of the Charter Amendment is suspension or termination from employment, not criminal
penalties.44 Moreover, Chief Glaser contends that Plaintiffs are not employed by the police
department, and Chief Glaser has no direction or control over Plaintiffs’ employment.45 Therefore,

39

Rec. Doc. 36 at 1.

40

Id. at 3.

41

Id. (citing 209 U.S. 123, 158–160 (1908)).

42

Id. at 4.

43

Rec. Doc. 12-1 at 2.

44

Id. at 3–4.

45

Id. at 4.

7

Chief Glaser argues, he has no authority to enforce the Charter Amendment against Plaintiffs.46
Accordingly, Chief Glaser contends that the Court should dismiss him from this litigation because
Plaintiffs have failed to state a claim upon which relief could be granted.47
2.

Plaintiffs’ Arguments in Opposition to the Motion to Dismiss

In response, Plaintiffs argue that Section 5.09 of the City Charter states that Chief Glaser
is “responsible for the prevention of crime, enforcement of applicable state law, this Charter, City
ordinances, and with the general enforcement of the law. . . .”48 Moreover, Plaintiffs note that the
Charter Amendment does not define or set forth any penalty for its violation.49 Plaintiffs contend
that they “have properly pled and alleged that they [have] never been properly put on notice as to
what the Charter prevents, or when and where it prevents it.”50 Plaintiffs assert that it is unclear
who enforces the Charter Amendment, but “Section 5.09 tells the Plaintiffs that it is just as likely
to be Chief Glaser as Mayor Zahn.”51
Plaintiffs note that a state actor may be immune from suit brought against him in his official
capacity.52 However, because Plaintiffs have sought injunctive relief against Chief Glaser,
Plaintiffs contend that he should remain a defendant in this matter pursuant to Ex Parte Young.53
“Given that the Charter’s terms can be reasonably interpreted to conclude that Chief Glaser would

46

Id. at 5.

47

Id.

48

Rec. Doc. 35 at 4.

49

Id. at 3.

50

Id. at 4.

51

Id.

52

Id.

53

Id.

8

be responsible for enforcing the offending Section 1.06,” Plaintiffs assert that a suit against him in
his official capacity is warranted.54
III. Legal Standard
Federal Rule of Civil Procedure 12(b)(6) provides that an action may be dismissed “for
failure to state a claim upon which relief can be granted.”55 A motion to dismiss for failure to state
a claim is “viewed with disfavor and is rarely granted.”56 “To survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’”57 “Factual allegations must be enough to raise a right to relief above the
speculative level.”58 A claim is facially plausible when the plaintiff has pleaded facts that allow
the court to “draw a reasonable inference that the defendant is liable for the misconduct alleged.”59
On a motion to dismiss, asserted claims are liberally construed in favor of the claimant,
and all facts pleaded are taken as true.60 However, although required to accept all “well-pleaded
facts” as true, a court is not required to accept legal conclusions as true.61 “While legal conclusions
can provide the framework of a complaint, they must be supported by factual allegations.”62
Similarly, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

54

Id. at 5.

55

Fed. R. Civ. P. 12(b)(6).

56

Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1050 (5th Cir. 1982).

57

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2008)).

58

Twombly, 550 U.S. at 556.

59

Id. at 570.

60
Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993); see
also Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007).
61

Iqbal, 556 U.S. at 677–78.

62

Id. at 679.

9

statements” will not suffice.63 The complaint need not contain detailed factual allegations, but it
must offer more than mere labels, legal conclusions, or formulaic recitations of the elements of a
cause of action.64 That is, the complaint must offer more than an “unadorned, the defendantunlawfully-harmed-me accusation.”65 From the face of the complaint, there must be enough factual
matter to raise a reasonable expectation that discovery will reveal evidence as to each element of
the asserted claims.66 If factual allegations are insufficient to raise a right to relief above the
speculative level, or if it is apparent from the face of the complaint that there is an “insuperable”
bar to relief, the claim must be dismissed.67
IV. Analysis
Mayor Zahn asserts that all claims against him should be dismissed because they are
redundant to Plaintiffs’ claims against the City. In response, Plaintiffs concede that the claims
against Mayor Zahn are identical to the claims against the City of Kenner. However, because
Plaintiffs have sought injunctive relief against Mayor Zahn, Plaintiffs contend that he should
remain a defendant in this matter pursuant to the Ex Parte Young exception to Eleventh
Amendment immunity.
“The Eleventh Amendment grants a State immunity from suit in federal court by citizens
of other States, and by its own citizens as well.”68 Moreover, it “is well established [that] ‘a suit

63

Id. at 678.

64

Id.

65

Id.

66

Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 257 (5th Cir. 2009).

67
Carbe v. Lappin, 492 F.3d 325, 328 n.9 (5th Cir. 2007); Moore v. Metro. Human Serv. Dep’t, No. 09-6470,
2010 WL 1462224, at * 2 (E.D. La. Apr. 8, 2010) (Vance, J.) (citing Jones v. Bock, 549 U.S. 199, 215 (2007)).
68

Union Pac. R. Co. v. Louisiana Pub. Serv. Comm’n, 662 F.3d 336, 340 (5th Cir. 2011) (quoting Lapides
v. Bd. of Regents, 535 U.S. 613, 616 (2002)).

10

against a state official in his or her official capacity is not a suit against the official but rather is a
suit against the official’s office’” and that therefore such officials are entitled to invoke the state’s
sovereign immunity.69 The Ex Parte Young exception allows suits against a state actor operating
in his official capacity when the plaintiff seeks injunctive relief to prevent an on-going violation
of federal law.70 However, it is well established that “Eleventh Amendment immunity does not
extend to units of local government” such as cities and counties.71 Accordingly, because Mayor
Zahn and Chief Glaser are city officials, not state officials, neither Eleventh Amendment immunity
nor the Ex Parte Young exception are applicable here.
The Supreme Court and Fifth Circuit have both recognized that suits against a public
official in his official capacity “generally represent another way of pleading an action against an
entity of which an officer is an agent.”72 “As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as
a suit against the entity.”73 The Fifth Circuit has further concluded that district courts may properly
dismiss claims against municipal officers in their official capacities when they are duplicative of
claims against the governmental entities themselves.74

69

Id. at 340, n.3 (quoting Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989)).

70

Ex Parte Young, 209 U.S. 123, 158–160 (1908).

71

Bd. of Trustees of the Univ. of Alabama v. Garrett, 531 U.S. 356, 369 (2001) (citing Lincoln Cnty. v.
Luning, 133 U.S. 529, 530) (1890).
72

Burge v. Par. of St. Tammany, 187 F.3d 452, 466 (5th Cir. 1999) (citing Monell v. Dep't of Soc. Servs. of
City of N.Y., 436 U.S. 658, 691 (1978)).
73

Kentucky v. Graham, 473 U.S. 159, 166 (1985).

74

Castro Romero v. Becken, 256 F.3d 349, 355 (5th Cir. 2001) (“The district court was also correct in
dismissing the allegations against all of the municipal officers and two of the employees of the Corps of Engineers in
their official capacities, as these allegations duplicate claims against the respective governmental entities
themselves.”) (citing Flores v. Cameron County, Tex., 92 F.3d 258, 261 (5th Cir. 1996)). See e.g., Moton v. Wilkinson,
No. 08-1356, 2009 WL 498487, at *1 (E.D. La. Feb. 26, 2009) (Vance, J.) (noting that the Fifth Circuit has generally
held that a plaintiff cannot maintain an action against an employer and its agent in his official capacity in other

11

Here, Plaintiffs have sued both Mayor Zahn, in his official capacity, and the City of Kenner.
Plaintiffs concede that the claims against Mayor Zahn are identical to the claims against the City
of Kenner, but argue that the claims against Mayor Zahn should remain because Plaintiffs are
seeking injunctive relief against Mayor Zahn. However, as discussed above, Ex Parte Young, the
only authority Plaintiffs cite to support this argument, is not applicable here because Mayor Zahn
is not a state actor entitled to Eleventh Amendment immunity. Because “it is proper to dismiss
allegations against municipal officers in their official capacities when the allegations duplicate
claims against the governmental entity itself,”75 and the City of Kenner has received notice and an
opportunity to respond, the claims against Mayor Zahn must be dismissed.
Chief Glaser does not argue that the claims against him are redundant to the claims against
the City of Kenner. Instead, Chief Glaser argues that the claims against him should be dismissed
because he is not the person responsible for enforcing the Charter Amendment. In response,
Plaintiffs contend that it is unclear who is responsible for enforcing the Charter Amendment, and
they have properly pleaded a claim against Chief Glaser. In the complaint, Plaintiffs allege that
Chief Glaser is “charged with enforcing violations of the City of Kenner’s Charter and/or
Ordinances” pursuant to Section 5.09 of the City Charter. Section 5.09 states that Chief Glaser is
“responsible for the prevention of crime, enforcement of applicable state law, this Charter, City

contexts, and that this principle also applies to suits against a municipality and its officers) (citing Smith v. Amedisys,
Inc., 298 F.3d 434, 449 (5th Cir. 2002); Romero, 256 F.3d at 355; Indest v. Freeman Decorating, Inc., 164 F.3d 258,
262 (5th Cir. 1999)).
75

Thompson v. Connick, 578 F.3d 293, 297 n.4 (5th Cir. 2009), rev'd on other grounds, 563 U.S. 51, 131 S.
Ct. 1350, 179 L. Ed. 2d 417 (2011); see e.g., U.S. ex rel. Bias v. Tangipahoa Par. Sch. Bd., No. 12-2202, 2014 WL
1512001, at *9 (E.D. La. Mar. 26, 2014) (Fallon, J.); Derischebourg v. Clark, No. 15-1712, 2016 WL 98617, at *8
(E.D. La. Jan. 8, 2016) (Africk, J.) (“This Court has previously dismissed official-capacity claims against officers of
an entity which were redundant of other claims in a lawsuit.”).

12

ordinances, and with the general enforcement of the law. . . .” Moreover, the Charter Amendment
does not specify who is responsible for its enforcement. Therefore, taking all well-pleaded facts as
true, the Court finds that Plaintiffs have alleged sufficient facts to state a claim against Chief
Glaser. Accordingly, Chief Glaser’s motion to dismiss must be denied.
V. Conclusion
For the reasons stated above, the Court concludes that Plaintiffs’ claims against Mayor
Zahn must be dismissed because they are duplicative of Plaintiffs’ claims against the City of
Kenner. However, taking all well-pleaded facts as true, the Court finds that Plaintiffs has alleged
sufficient facts to state a claim against Chief Glaser.
Accordingly,
IT IS HEREBY ORDERED that Mayor Zahn’s “Motion to Dismiss Pursuant to Fed. R.
Civ. Proc. 12(b)(6)”76 is GRANTED.
IT IS FURTHER ORDERED that Chief Glaser’s “Motion to Dismiss Pursuant to Fed.
R. Civ. Proc. 12(b)(6)”77 is DENIED.
NEW ORLEANS, LOUISIANA, this 20th day of February, 2018.
____

_________________________________
NANNETTE JOLIVETTE BROWN
UNITED STATES DISTRICT JUDGE

76

Rec. Doc. 11.

77

Rec. Doc. 12.

13