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

United States District Court, E.D. Louisiana

May 12, 2017

JAMES DUMAS
v.
ST. TAMMANY PARISH FIRE DISTRICT NO. 3, ET AL.,

         SECTION: “J” (1)

          ORDER & REASONS

          CARL J. BARBIER UNITED STATES DISTRICT JUDGE.

         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 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 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 Plaintiff's claims. Specifically, Defendants move to dismiss Plaintiff's First Amendment freedom of association retaliation claim against Lober in his official and individual 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 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 be dismissed because Plaintiff's speech was not primarily on a matter of public concern.[6] 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 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.

         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 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 ...


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