United States District Court, W.D. Louisiana, Lafayette Division
KIRBY V. MADISON, SR.
CITY OF PATTERSON, ET AL.
WHITEHURST MAGISTRATE JUDGE
MAURICE HICKS, JR., CHIEF JUDGE UNITED STATES DISTRICT COURT
the Court is a Motion To Dismiss For Failure To State A Claim
Upon Which Relief Can Be Granted, filed by the Defendants,
the City of Patterson and Rodney Grogan, in his official and
individual capacities (hereinafter collectively referred to
as “the Defendants”). See Record
Document 19. For the reasons which follow, the Motion To
Dismiss is GRANTED IN PART and
DENIED IN PART.
factual allegations contained in the complaint are accepted
as true and are as follows. The plaintiff, Kirby Madison
(“Madison”), was hired as an officer with the
Patterson Police Department on February 1, 1998. See
Record Document 16 at 2 ¶ 2. He alleges that throughout
his employment, he had a “spotless employment record,
free from disciplinary actions.” Id. at ¶
3. On January 1, 2010, defendant Rodney Grogan (“Mayor
Grogan”) was elected Mayor of the City of Patterson. In
April of 2014, Samantha Mincey (“Mincey”), a
cousin of Mayor Grogan, was hired as an employee of the
Patterson Police Department and became a dispatcher. See
id. at ¶ 5. On November 4, 2016, Mincey had
completed her shift and was standing outside getting ready to
go home when she saw Madison exit the bathroom. She shouted
out to Madison, in the presence of several witnesses,
“Look at black mother f****er.” Id. at 3
¶ 6. In response to Mincey's statement, Madison
grabbed the front of his pants in his crotch area and
motioned, stating “suck this” and “if you
can't say nothing nice, don't say nothing at
all.” See id.
Mincey filed a written complaint against Madison. As a result
of her complaint, both Mincey and Madison were disciplined.
Mincey received one day suspension and Madison received three
days. See id. at ¶ 7.
to Madison, on March 1, 2016, Mayor Grogan began
“openly mocking and referred to [Madison] as a
‘black monkey.'” Id. at ¶ 8.
Madison further alleges that “this behavior was not in
isolation in [his] working environment.” Id.
He complains that the defendants conducted no investigation
into “the repeated discrimination/harassment [he]
suffered based on his race” and that while he
“repeatedly complained and/or opposed the unlawful race
discrimination/harassment to Defendants, no action was
taken.” Id. at 3-4 ¶ 8.
February 3, 2017, Mincey was terminated for poor performance
and continuing use of inappropriate language in the
workplace. Madison alleges that “[f]ollowing her
termination, defendant Grogan again referred to [him] as a
‘black monkey'” and that he “again
complained and/or opposed defendant Grogan's comment to
Defendants, yet, nothing was done.” Id. at 4
alleges that following Mincey's termination, she filed a
Charge of Discrimination with the Equal Employment
Opportunity Commission on or about March 21, 2017, wherein
she complained about the November 4, 2016, incident and about
what she perceived to be retaliation by others. See
id. at ¶ 10. Madison contends that “over the
objection of then Assistant Patterson Police Chief Gary
Stevenson and Petitioner [Madison], defendants agreed to pay
Mincey and her attorney $85, 000.00 - without Mincey ever
having to file a lawsuit - in May, 2017.” Id.
at ¶¶ 10-11.
according to Madison's allegations, a dispute began
between Mayor Grogan and then Patterson Police Department
Chief LaSalle regarding Mayor Grogan's “attempts to
micro manage the police department in violation of state
law.” Id. at ¶ 12. He asserts that Mayor
Grogan “began disciplining and/or terminating Patterson
Police Department Officers without the authority of
alleges that after his complaints of race discrimination and
harassment, Mayor Grogan “reopened the
‘investigation' into the written complaint against
[him], which had already closed and for which he had already
served his suspension.” Id. at 5 ¶ 12a.
He contends that he was “not informed of the nature of
Grogan's ‘investigation,' and received no
notice as to defendant Grogan's identity as the
‘investigator' and/or his authority to do so”
and that, at no time, was he “afforded the right to
counsel and/or another representative.” Id. He
asserts that no communication was made to him about the
reopened investigation by Mayor Grogan. Specifically, he
As a result of his complaints of race discrimination/
harassment, and over sixty (60) days after defendant Grogan
reopened the “investigation” into [Madison], on
November 4, 2017, defendant Grogan unilaterally terminated
[Madison's] employment for “sexual
harassment” - the same incident for which [he] had been
suspended a year prior and without any adherence to, much
less consideration of, the Peace Officer's Bill of
Rights, La. R.S. 40:2531, et seq., and the law.
Id. at ¶ 13. Following his termination, Madison
“immediately requested an appeal and review by
defendant City's Board of Alderman as provided by
law.” Id. at 7 ¶ 16. He asserts that on
“November 13, 2017, Petitioner requested that
Defendants give him an opportunity to rebut the false
allegation/reason for his termination, specifically, that he
committed sexual harassment.” Id. His request
was denied. Instead, Madison contends that “on November
22, 2017, defendants ignored Petitioner's lawful request
and defendant Grogan responded that he, alone, was making the
decision to terminate, that his decision is final, and that
Petitioner has no right to appeal or review - all in
violation of clearly established law.” Id.
filed suit on January 26, 2018, in state court, alleging,
inter alia, that he was wrongfully or improperly
terminated by the City of Patterson. See Record
Document 1. The Defendants removed Madison's suit to this
court and, thereafter filed a motion to
dismiss. See Record Documents 1 and 4.
Thereafter, Madison filed an unopposed motion for leave to
file an amended complaint, which was granted. See
Record Documents 12 and 15. In his amended complaint, Madison
alleges that “Defendant Grogan does not possess the
lawful authority to unilaterally terminate any police officer
. . [because] pursuant to La. R.S. 33:423.7, the Mayor is
vested only with authority to recommend termination to the
Board and he does not possess authority to unilaterally
terminate.” Record Document 16 at 6-8 ¶¶
15-17. He also asserts that because “defendant Grogan
unilaterally terminated Petitioner without advising him of
his rights under the law and greater than 60 days after the
incident[, ]” the termination was in violation of
Louisiana Revised Statute 40:2531 and is absolutely null.
Id. at 6 ¶ 14. Madison further contends,
inter alia, that the Defendants violated his First
Amendment right to “report, protest, and oppose
unlawful race discrimination, ” his Fourteenth
Amendment right to “liberty, good name, and reputation,
” his Fourteenth Amendment right “to be free from
racial discrimination, ” and his Fourteenth Amendment
right to “a property interest in his employment.”
Record Document 12 at 8-9 ¶¶ 18-18a. The Defendants
have now re-urged their motion to dismiss, seeking dismissal
of all of Madison's claims against them. See
Record Document 19. Madison filed an opposition and the
Defendants thereafter filed a reply. See Record
Documents 21 and 26.
Pleading Standards And The Rule 12(b)(6) Standard.
8(a)(2) of the Federal Rules of Civil Procedure requires that
a pleading contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
The standard for the adequacy of complaints under Rule
8(a)(2) is now a “plausibility” standard found in
Bell Atlantic Corporation v. Twombly, 550 U.S. 544,
127 S.Ct. 1955 (2007), and its progeny. Under this standard,
“[f]actual allegations must be enough to raise a right
to relief above the speculative level on the assumption that
all the allegations in the complaint are true (even if
doubtful in fact).” Id. at 555-56, 127 S.Ct.
at 1965 (citations omitted). If a pleading only contains
“labels and conclusions” and “a formulaic
recitation of the elements of a cause of action, ” the
pleading does not meet the standards of Rule 8(a)(2).
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct.
1937, 1949 (2009) (citation omitted).
Rule of Civil Procedure 12(b)(6) allows parties to seek
dismissal of a pleading for failure to state a claim upon
which relief may be granted. In deciding a Rule 12(b)(6)
motion to dismiss, a court generally “may not go
outside the pleadings.” Colle v. Brazos Cnty.,
Tex., 981 F.2d 237, 243 (5th Cir. 1993) (citation
omitted). However, a court may rely upon “documents
incorporated into the complaint by reference  and matters
of which a court may take judicial notice” in deciding
a motion to dismiss. Dorsey v. Portfolio Equities,
Inc., 540 F.3d 333, 338 (5th Cir. 2008) (citation
omitted); see Fed.R.Evid. 201. Additionally, courts
must accept all allegations in a complaint as true. See
Twombly, 550 U.S. at 555, 127 S.Ct. at 1965.
motion to dismiss is “viewed with disfavor and is
rarely granted.” Turner v. Pleasant, 663 F.3d
770, 775 (5th Cir. 2011), quoting Harrington v. State
Farm Fire & Cas. Co., 563 F.3d 141, 147 (5th Cir.
2009). Dismissal is appropriate only if the complaint fails
to plead “enough facts to state a claim to relief that
is plausible on its face.” Twombly, 550 U.S.
at 570, 127 S.Ct. at 1974. To satisfy this standard, the
complaint must provide more than conclusions, but it
“need not contain detailed factual allegations.”
Colony Ins. Co. v. Peachtree Constr., Ltd., 647 F.3d
248, 252 (5th Cir. 2011). However, it must allege enough
facts to move the claim “across the line from
conceivable to plausible.” Twombly, 550 U.S.
at 570, 127 S.Ct. at 1974. Determining whether the
plausibility standard has been met is “a
context-specific task that requires the reviewing court to
draw on its judicial experience and common sense.”
Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950.
Mayor Grogan's Authority To Terminate.
first claim is that Mayor Grogan lacked authority to
terminate him under state law. See Record Document
16 at 6 ¶ 15. The Defendants contend that Mayor Grogan
had authority to terminate Madison by virtue of the City of
Patterson's Home Rule Charter. See Record Document
19 at 6. “In 1898, the Lawrason Act was passed setting
forth a general legislative charter for all municipalities
created after its effective date as well as for those created
prior to its effective date which chose to accept its
provisions. It was the intent of the Act to provide a uniform
type of government for all municipalities in
Louisiana.” La. R.S. 33:321, Reporter's Notes-1950.
In Louisiana, all municipalities, by default, are governed by
the Lawrason Act “except those municipalities governed
by a special legislative charter or a home rule charter or
plan of government adopted pursuant to Article VI of the
Constitution of Louisiana.” La. R.S. 33:321. The City
of Patterson is governed by a Home Rule Charter, which became
effective on January 1, 1993. The Charter grants the mayor,
as chief executive officer of the city government, the power
(2) Appoint, suspend, or remove all city government
employees, appointive administrative officers, and appointed
providers of professional services provided for, by, or under
this Charter in accordance with the personnel policies. The
mayor may authorize any administrative officer who is subject
to the mayor's direction and supervision to exercise
these powers with respect to subordinates in the
officer's department, office or agency.
(3) Direct and supervise the administration of all
departments, offices, and agencies of the city government,
except as otherwise provided by this Charter.
Defendants take this language and conclude that Mayor Grogan
“possessed the full authority to appoint, suspend, and
remove any and all employees of the Patterson Police
Department, including Madison.” Record Document 19 at
counters this argument by citing to Louisiana Revised Statute
33:423.7, a part of the Lawrason Act. This section, enacted
after the City of Patterson's Home Rule Charter was in
Notwithstanding the provision of R.S. 33:423 or any other
provision of law to the contrary, in and for the city of
Patterson, the chief of police shall appoint and discharge
police personnel subject to the budgetary limitations of the
mayor and board of aldermen pertaining to the number of
allotted positions for the police department.
La. R.S. 33:423.7. In response to this apparent conflict, the
Defendants cite an advisory opinion from the Louisiana
Attorney General and a judgment from the 16th Judicial
District Court in and for the Parish of St. Mary, both of
which concluded that Section 423.7 is unconstitutional.
See La. Att'y Gen. Op. No. 95-465 (Nov. 21,
1995) and Grogan v. La., No. 127, 615 (La. 16th
J.D.C. 2014) (Record Document 19, Ex. A). Madison counters
this response by asserting that the Defendants are requesting
that this Court “make some sort of ‘Erie
guess' as to the constitutionality of La. R.S.
:423.7.” Record Document 21 at 9. Madison also
disputes the binding nature, or lack thereof, of the two
opinions that concluded that Section 423.7 unconstitutional.
See id. However, it is unnecessary for this Court to
reach these issues at this juncture of the
Defendants have chosen to essentially ignore Section 2-8 of
the Code of Ordinances of the City of
Patterson. Section 2-8 is entitled “Chief of
police” and provides in section (d) that
[t]he chief of police shall hire and fire personnel within
his department with the advice and consent of the mayor and
city council; except that the chief of police department may
suspend any officer or other employee of the ...