GERALD MELANCON, JR.
TOWN OF AMITE CITY GERALD MELANCON, JR.
TOWN OF AMITE CITY
Appeal from the 21st Judicial District Court In and for the
Parish of Tangipahoa State of Louisiana Trial Court Nos.
2010-0003533 and 2009-0003825 Honorable Elizabeth P. Wolfe,
C. McGovern Metairie, LA Attorneys for Plaintiff -Appellant,
Gerald Melancon, Jr.
Lellelid Metairie, LA Karen Day White Baton Rouge, LA
Attorney for Defendant -Appellee, Town of Amite City.
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
challenges the trial court's grant of defendant's
motion for involuntary dismissal after plaintiffs
presentation of evidence in a bench trial wherein the trial
court determined that plaintiff failed to meet his burden of
proof under La. R.S. 23:967, the Louisiana Whistleblower
AND PROCEDURAL HISTORY
Mr. Gerald Melancon, was hired by the Amite City Police
Department (the Department) on March 24, 2008. On August 4,
2009, the Louisiana State Police sent a letter to Jerry
Trabona, the Chief of Police for the Department, stating that
an audit of the Department uncovered violations of the
National Crime Information Center (NCIC) criminal database
system. The audit revealed uses of the NCIC by Mr. Melancon
for unauthorized purposes. After receiving the letter, the
Department investigated further and found that Mr.
Melancon's passwords for the NCIC and
Thinkstream systems were used to run the names of
thirteen individuals, including two Amite City council
members, three officers with the Tangipahoa Parish Sheriffs
Office, seven employees of the Department, and his wife,
Gerilyn Melancon. During interviews with Mr. Melancon
conducted as part of the Department's investigation, Mr.
Melancon denied running the names on several occasions.
September 1, 2009, at a meeting of the City Council of the
Town of Amite City, Chief Trabona recommended that Mr.
Melancon be dismissed from the Department for not following
rules and regulations of the department by "running
criminal history checks on thirteen people.. .in violation of
[La. R.S. 15:596]." The city council unanimously
accepted Chief Trabona's recommendation to terminate the
employment of Mr. Melancon.
Mr. Melancon was terminated, he filed a "Petition to
Void Action of the Town of Amite City," arguing that the
Town of Amite City (Town) did not comply with the notice
provisions in La. R.S. 42:6.1, and the action terminating Mr.
Melancon should be declared null and void. Subsequently, Mr.
Melancon filed a "Petition for Damages" against the
Town seeking damages under La. R.S. 23:967, the Louisiana
Whistleblower Act. Specifically, in his petition, Mr.
Melancon contended that he expressed concerns with his
supervisors, including Chief Trabona, about violations of
state law he saw occurring within the Department, and that
his disclosure of the violations was a motivating factor in
the Town's decision to terminate him. Additionally, Mr.
Melancon contended that he was instructed by his captain to
perform the criminal background checks as part of his
investigation into the persons he thought were responsible
for violations of the law.
Melancon's petitions were consolidated for trial held on
August 9 and 10, 2017. At the close of Mr. Melancon's
case, the Town moved for a judgment of involuntary dismissal.
After taking the matter under advisement, the trial court
found that Mr. Melancon failed to carry his burden of proof
and signed a judgment on October 27, 2017, granting the
Town's motion for involuntary dismissal. It is from this
judgment that Mr. Melancon appeals, assigning error to the
trial court's conclusion that Mr. Melancon did not prove
by a preponderance of the evidence that he was fired for acts
protected under La. R.S. 23:967.
Code of Civil Procedure article 1672(B) provides the basis
for an involuntary dismissal at the close of a plaintiff s
case in a bench trial, when a plaintiff has shown no right to
relief based on the facts and law. In determining whether
involuntary dismissal should be granted, the appropriate
standard is whether the plaintiff has presented sufficient
evidence in his case-in-chief to establish a claim by a
preponderance of the evidence, which means taking the
evidence as a whole, the fact or cause sought to be proved is
more probable than not. Jackson v. Capitol City Family
Health Center, 2004-2671 (La.App. 1st Cir. 12/22/05),
928 So.2d 129, 131. When considering a motion for involuntary
dismissal, a plaintiff is entitled to no special inferences
in his favor. However, absent circumstances in the record
casting suspicion on the reliability of the testimony and
sound reasons for its rejection, uncontroverted evidence
should be taken as true to establish a fact for which it is
trial court's grant of an involuntary dismissal is
subject to the manifest error standard of review.
Broussard v. Voorhies, 2006-2306 (La.App. 1st Cir.
9/19/07), 970 So.2d 1038, 1041-42, writ denied,
2007-2052 (La. 12/14/07), 970 So.2d 535. Accordingly, in
order to reverse the trial court's grant of involuntary
dismissal, we must find that there is no factual basis in the
record for the trial court's finding or that the finding
is clearly ...