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Tingle v. Hebert

United States District Court, M.D. Louisiana

April 16, 2018

BRETTE TINGLE
v.
TROY HEBERT, IN HIS INDIVIDUAL & OFFICIAL CAPACITY AS THE COMMISSIONER OF THE OFFICE OF ALCOHOL AND TOBACCO CONTROL OF THE LOUISIANA DEPARTMENT OF REVENUE

          RULING AND ORDER

          JOHN W. deGRAVELLES JUDGE

         This matter comes before the Court on the Defendants' Motion for Partial Summary Judgment (Doc. 116) filed by Defendants Troy Hebert and the Office of Alcohol and Tobacco Control of the State of Louisiana (“ATC”) (collectively, “Defendants”). Plaintiff Brette Tingle opposes the motion. (Doc. 137.) Defendants have filed a reply. (Doc. 145.) Oral argument is not necessary. For the following reasons, the Defendants' motion is granted in part and denied in part.

         I. Introduction

         Plaintiff is a former employee of the ATC. Plaintiff was terminated from his job by Troy Hebert, who at one time served as head of the ATC.

         Plaintiff subsequently filed this suit against the ATC and Hebert asserting a number of causes of action. These include (1) retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a) and 42 U.S.C. §§ 1981, 1983 (Doc. 62 at 3, 13); (2) invasion of privacy under the Fourth Amendment to the United States Constitution and Article I, § 5 of the Louisiana Constitution (Doc. 62 at 14-15); and (3) defamation under Louisiana state law (Doc. 62 at 15- 20).

         Defendants have filed a couple of motions to dismiss (Docs. 10, 68), and the Court has granted these motions in part and denied them in part (Docs. 32, 90). After these rulings, the following claims have survived: (1) against Troy Hebert, Plaintiff's claims for (a) retaliation under §§ 1981, 1983 (Doc. 32 at 2); (b) invasion of privacy under the federal and state constitutions (Doc. 32 at 2-4); and (c) defamation (Doc. 32 at 4-6); and (2) against the ATC, Plaintiff's claim for retaliation under Title VII (Doc. 62 at 13-14; Doc. 90 at 2).

         Defendants have filed the instant motion seeking the dismissal of three discrete sets of claims. First, Defendants ask the Court to dismiss Plaintiff's claim that he was retaliated against “because he participated as a witness in the Randall Kling litigation presently pending in the 19thJudicial District Court.” (Doc. 116-1 at 2; Doc. 62 at 14.)

         Second, Defendants argue that the Court should dismiss Plaintiff's claim that Defendants retaliated against him by way of certain investigations the ATC conducted. (Doc. 116-1.) Specifically, Defendants maintain that the Plaintiff cannot show a prima facie case of retaliation because the following are not adverse employment actions: (1) investigating Plaintiff for the ATC's alleged lack of compliance with the DEA and for purportedly missing money; (2) investigating Plaintiff for allegations that he placed Agent Lorre Claiborne in danger; and (3) investigating Plaintiff's wife, Traci Tingle, for “allegedly falsifying state documents” related to an ATC office in Vidalia, Louisiana. (Doc. 116-1 at 5; Doc. 62 at 8-10.)

         And third, Defendants contend that one of Plaintiff's defamation claims should be dismissed. Specifically, Plaintiff alleges in his Amended Complaint:

Contemporaneous with the termination of the Plaintiff, Troy Hebert released statements to the press and to agents with the ATC that his vehicle had been set on fire. In an interview with a New Orleans news outlet, WVUE, on August 19, 2015, Troy Hebert maliciously stated that if a person was to "connect the dots" it would be clear who vandalized the vehicle, as a way of implicating the Plaintiff without saying the Plaintiff's name. While it is apparently true that Troy's vehicle had been set on fire, Troy Hebert had no evidence that the Plaintiff had committed this crime. Troy Hebert did know, or certainly should have known, that the temporal proximity of his statements and the termination of the Plaintiff carried false and defamatory implications. These implied accusations are false and defamatory per se.

(Doc. 62 at 16.) Defendants argue in the instant motion that Hebert never said “connect the dots” and made no such defamatory suggestion. (Doc. 116-1 at 2.)

         Having carefully considered the law, facts in the record, and arguments and submissions of the parties, the Court will grant summary judgment on the first and third issues but deny on the second. As to the first (the Randall Kling litigation), Plaintiff concedes that this claim should be dismissed (Doc. 137 at 1-3), so it need not be discussed further.

         As to the second issue (retaliatory investigations), to demonstrate retaliation under Title VII, "a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.' ” Burlington N. and Sante Fe R.R. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 2415, 165 L.Ed.2d 345 (2006) (internal citations omitted). Relying on Fifth Circuit precedent, this Court has twice held that mere job scrutiny does not rise to the level of an adverse employment action. Plaintiff urges that these facts are unique. The Court agrees. Cases in other jurisdictions have indicated that investigations can, under certain circumstances, constitute adverse employment actions. The same finding is appropriate here. As a result, the Court finds that Plaintiff has demonstrated a question of fact as to whether the investigations in this case constitute adverse employment actions, and summary judgment on these claims is thus denied.

         As to the third issue (defamation related to the vandalism and destruction of ATC vehicles), the Louisiana Supreme Court has recognized that “[a] pure statement of opinion, which is based totally on the speaker's subjective view and which does not expressly state or imply the existence of underlying facts, usually will not be actionable in defamation[.]” Bussie v. Lowenthal, 535 So.2d 378, 381 (La. 1988) (citation omitted). “That is because falsity is an indispensable element of any defamation claim, and a purely subjective statement can be neither true nor false.” Id. “ ‘[T]he crucial difference between statement of fact and opinion depends upon whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker's or writer's opinion, or as a statement of existing fact.' ” Id. (citation omitted). “In order for a statement of opinion to be actionable in defamation on the ground that it gives rise to a defamatory factual inference, the factual inference created by the statement must be ascertainable by a reasonable person with some degree of certainty.” Id. at 382-83.

         Here, all of the statements Hebert actually made that Plaintiff complains of-both in Hebert's television interview and in other media-constitute mere opinion. No reasonable jury would conclude that Hebert's statements (which do not include the “connect the dots” language) express or imply the existence of underlying facts, and his words are too unspecific and general to be actionable defamation under the Bussie standard. Consequently, Plaintiff's defamation claim related to the vandalism, shooting, and torching of ATC vehicles is dismissed.

         II. Relevant Factual Background

         A. Plaintiff's Retaliation Claims Related to Defendants' Investigations

         Troy Hebert initiated an investigation to take action to obtain any money that ATC should have collected from the DEA. (Defendants' Statement of Material, Undisputed Facts In Support of the Motion for Partial Summary Judgment (“DSMUF”), Doc. 116-12 at 2; Plaintiff's Response to Defendants' [SMUF] (“PRDSMUF”), Doc. 137-1 at 1.) Specifically, Hebert testified that Tingle came to him and “said that there was $100, 000 in money that . . . could be gotten to ATC.” (Doc. 116-6 at 2-3.) Hebert purportedly said, “Okay, well, then go get the money[.] . . . But it never happened. . . . [Hebert didn't] think [they] ever got the money[.]” (Doc. 116-6 at 3.) Hebert testified that he did not “recall telling Mr. Louis Thompson to go get the money. . . . [He] recall[ed] telling Mr. Brette Tingle to go get the money; and if that included getting Mr. Louis Thompson involved, then that's the way it should be. But . . . Tingle knew where the last money was.” (Doc. 116-6 at 4.)

         Hebert was asked if he followed up on the collection of the money, and he replied: “I asked about it along the way, but like so many other things that you give them, these assignments, and they don't do them.” (Doc. 116-6 at 5.) Hebert stated that he would ask Tingle about the project, and Hebert would reply, “ ‘He's is [sic] working on it, ' or something like that.” (Doc. 116-6 at 6.) But, ultimately, Hebert said his only actions to collect the money were “[a]ssigning it [to Tingle] and following up with him[.]” (Doc. 116-6 at 6.)

         Additionally, Hebert testified that Plaintiff's wife, Traci Tingle, did inventory for the ATC every year. (Doc. 116-6 at 12.) When she left the ATC, someone “did an inventory list and found out that there was some discrepancies about some . . . office furniture located in Vidalia.” (Doc. 116-6 at 12.) Hebert said he asked Director Larry Hingle to “look into it.” (Doc. 116-6 at 13.)

         Troy Hebert also initiated an investigation into allegations made by Lorre Claiborne that she felt endangered by being assigned to work in uniform at convenience stores and other Alcohol Beverage Outlets (ABOs) where she previously worked undercover. (DSMUF, Doc. 116-12 at 2; PRDSMUF, Doc. 137-1 at 1.) Frank Perez, an outside attorney hired by the ATC, conducted the investigation and reported his findings. (DSMUF, Doc. 116-12 at 2; PRDSMUF, Doc. 137-1 at 1.) There was no finding of any wrongdoing by Brette Tingle. (DSMUF, Doc. 116-12 at 2; PRDSMUF, Doc. 137-1 at 2.)

         Meanwhile, Plaintiff testified as to the number of ways he believed he was retaliated against with respect to the investigations. He stated that, first, there were “[n]o proper investigations. No interviews. [He] was never given the opportunity to answer questions.” (Doc.137-4 at 63.) Second, Plaintiff stated that “things were withheld so that the report wouldn't be an accurate reflection of [his] time.” (Doc. 137-4 at 63.) That is, the report was not, in his opinion, accurate. (Doc. 137-4 at 63.) Third, Plaintiff maintains that “Hebert asked for an investigation in October about threats made . . . about Lorre Claiborne.” (Doc. 137-4 at 63.) Plaintiff says that “nothing came, no disciplinary action was taken against him for” this. (Doc. 137-4 at 63.) Of this Claiborne investigation, Tingle testified: “The result of that, nothing happened to Brette Tingle.” (Doc. 116-5 at 3.) As to the fourth and fifth items, Plaintiff testified:

That the OIG's office conducted an investigation and found that I did nothing wrong. The results were not taken from Troy Hebert positively and he went to the Louisiana State Police and demanded that they do an investigation. They contacted the OIG's office and was satisfied with the report and that still did not satisfy Troy Hebert and he went through with the second termination after I was - after the - we were sequestered and then put under sequestration from the hearing officer not to discuss anything rescinded that and then move with the second termination in the public release of everything to the public to law -

(sic) (Doc. 137-4 at 63-64.) When asked about the investigation brought to the OIG and Louisiana State Police, Plaintiff said it was retaliatory “that [Hebert] would not accept the OIG's report by a legit investigative agency and went to state police and demanded they do something when they agreed [with] the OIG's report and didn't pursue anything, it was rescinded and more things were piled on.” (Doc. 137-4 at 64.)

         Lastly, Plaintiff testified that he was retaliated against by Hebert “calling him and telling him we're going to investigate [Tingle's] wife for falsifying public documents and get[] the legislative auditor involved because she falsified public documents that there was an office in Vidalia with equipment.” (Doc. 116-5 at 5.) Tingle admitted, however, that his wife was not terminated and received no pre-termination notice, but he said this was “because she didn't give [Hebert] a chance. She retired.” (Doc. 116-5 at 6.)

         According to the disciplinary letters submitted by the Defendants, Plaintiff was not terminated for the violations concerning the DEA money, Lorre Claiborne's complaints, or the office furniture at the ATC's office in Vidalia. (Docs. 116-8.)

         B. Plaintiff's Defamation Claim

         Hebert gave an interview to WVUE on August 19, 2015. (Doc. 116-9.) Before providing a transcript of that interview, two facts referenced in the interview are worth noting.

         First, Plaintiff and Jedd Faulk, Plaintiff's subordinate employee, exchanged text messages on May 18, 2012, concerning a former ATC Agent named Daniel Abdella. (Doc. 116-5 at 10.) After discussing how Abdella resigned, Plaintiff said, in response to the question of where Abdella was going, “Not in law enforcement. Said something spiritual. Probably joining the Jihad.” (Doc. 116-10 at 3.) Faulk then said, “yikes, maybe he will suicide bomb maniac's office.” (Doc. 116-5 at 11.) Plaintiff replied, “I'm hoping, ” though Plaintiff testified that he did so “in gest.” (Doc. 116-5 at 10-11.) Faulk responded, “Wasn't expecting him as our Manchurian candidate but he'll do.” (Doc. 116-5 at 10-11, Doc. 116-10 at 3.) Plaintiff then said: “I take him . . . I'll even accept any collateral damage. . . . I will just stay away from that side of the office.” (Doc. 116-5 at 11.) Faulk said, “a few sticks of dynamite ain't going to reach our office, ” and Plaintiff responded: “nope. We would be good.” (Doc. 116-5 at 11.) Plaintiff again testified that he did so “in gest.” (Doc. 116-5 at 11.)

         Second, Defendants submit a copy of a Facebook post in which individuals were discussing seeing Hebert at a restaurant. (Doc. 116-11.) One of the individuals (whom Defendants represent is a former ATC employee) said: “That's enough to make me lose my lunch! Oh oh shoot him!!! That will make the world happier and a better place!!!!” (Doc. 116-11 at 2.)

         Returning to the key issue, the following is a transcript of the WVUE interview:

[Anchor, on camera:] “Threatening texts and payroll fraud-some of the reasons why the ATC says one of its supervisors lost his job. Brett Tingle's firing comes as police investigate a number of crimes involving several Alcohol and Tobacco vehicles.”
[Reporter, off camera, with a photo of Brett Tingle in the center foreground and a blurred image of the reporter and Hebert in the background:] “Commissioner Troy Hebert calls the alleged action of the former supervising ATC agent ‘alarming and extremely disturbing.' ”
[Reporter, off camera, with various images in the background:] “The agency says Brett Tingle is accused of pay roll fraud and breaking ATC policy by having a secondary job with the Harbor Police. The ATC also claims Tingle used his state issued cell phone to text racist and threating messages.”
[Hebert, on camera:] “We live in a day and age today that we cannot accept this from regular people. We certainly cannot accept it from law enforcement who is (sic) commissioned officers who are given guns and weapons.
[Reporter, off camera, with soundless video of Hebert looking at two pieces of paper:] “The ATC released some of the text messages. In one conversation discussing the resignation of an agent of Middle Eastern descent, a former ATC agent says:
[Graphic displayed with headline “ATC SUPERVISOR FIRED” and sub-headline “THREATENING TEXTS FOUND”, with two frames below this. In the left frame is a picture of Tingle. In the right frame are the words:
FORMER ATC EMPLOYEE:
YIKES. MAYBE HE'LL SUICIDE BOMB MANIAC'S OFFICE.”
BRETTE TINGLE: “I'M HOPING!!!”
[Reporter, off camera, reads from the text messages]
[Reporter, still off camera, continues, with close up of Hebert talking:] “Commissioner Hebert says he is the maniac the former agent is referring to.” [Hebert, on camera:] “This is just an excerpt of the text messages and it is very obvious to who they are alluding to.” (sic)
[Reporter, off camera, with inaudible video of Hebert talking] “Hebert says he has thick skin, but it is a bit unnerving and concerning. [photograph of Hebert displayed, with police lights unfocused in the background, followed by image of vehicle with gas cap removed and with either dust or burn marks on it.] Tingle's firing comes just two days after someone stole Hebert's state issued truck from in front of his home and set it on fire. [successive images of vehicles with holes in the windows, then a shattered windshield] Before that, someone shot up six unmarked ATC vehicles in a parking garage at the agency's Baton Rouge headquarters.”
[Hebert, on camera:] “Look I have been in politics for 25 years. I have been called way worse than a maniac, you know. That does not bother me. What I guess the concern comes at today is with, you know, some of the recent activity just happened with my vehicle and in the past vehicles getting shot up. Um, I am not trying to say any of this is connected, what I am saying is I do not want my family or me to be the story that something bad happens and then the media is gonna simply see these things and ask well you saw all the evidence, you saw the clues, why didn't you all do something about it and prevent it. I mean we all can be Monday morning quarterbacks. Ok, I do not want to wait till Monday morning to take care of it.”
[Reporter, off camera, with soundless video of reporter and Hebert displayed:] “Hebert says he is hoping there is no connection between the recent happenings, but he isn't taking any chances.”
[Hebert, on camera:] “That's gonna be something for the investigators to determine, but I will tell you this, that there is numerous number of text messages. There is one alluding to about not only bombing my office, but about shooting me. There is one where they have a picture of me in a restaurant and some of the comments and suggestions is just shoot him, you know . . . When you add all those things together . . . if you are smart you are going to be concerned.”
[Reporter, off camera, with video of city displayed:] “Hebert says all of the agency's findings have been turned over to State ...

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