United States District Court, E.D. Louisiana
ORDER AND REASONS
J. BARBIER UNITED STATES DISTRICT JUDGE.
the Court are two Motions to Dismiss (Rec. Docs. 25,
26) filed by Defendants, Lafourche Parish Government and
Jimmy Cantrelle. Plaintiff, Reggie Bagala, opposes both
motions (Rec. Doc. 27). Having considered the motions and
legal memoranda, the record, and the applicable law, the
Court finds that the motions should be
AND PROCEDURAL HISTORY
litigation arises out of Plaintiff's termination from his
position as the Parish Administrator for the Lafourche Parish
Government. On November 16, 2016, Jimmy Cantrelle, the
Lafourche Parish President (“Mr. Cantrelle”),
asked Plaintiff to make “polling” phone calls to
various Lafourche Parish council members regarding a
potential change in the Lafourche Parish employee health
insurance contract. After calling two council members,
Plaintiff informed Mr. Cantrelle that he would not make any
more calls because he believed the calls violated the
Louisiana Open Meetings Law.
December 2, 2016, the Lafourche Parish Council directed the
Lafourche Parish District Attorney to investigate whether the
calls were unlawful. Plaintiff alleges that he participated
in the investigation by speaking with the District Attorney.
Ultimately, the District Attorney concluded that there was
not a factual basis for criminal charges against Mr.
Cantrelle. On January 31, 2017, Mr. Cantrelle fired Plaintiff
from his position as the Parish Administrator. Although
Plaintiff was subsequently appointed by the Lafourche Parish
Council as the Legislative Auditor, Plaintiff alleges that
his new salary is substantially lower, and he has fewer
January 31, 2018, Plaintiff filed the instant lawsuit against
the Lafourche Parish Government (the “LPG”) and
Mr. Cantrelle, individually and in his official capacity as
Lafourche Parish President, under 42 U.S.C. § 1983,
alleging that Plaintiff was terminated in retaliation for
exercising his First Amendment rights. Specifically,
Plaintiff alleges that Defendants infringed his freedom of
speech after he spoke out against Mr. Cantrelle. In addition,
Plaintiff alleges that Defendants violated the Louisiana
Whistleblower Statute by firing him after he voiced his
opinion that Mr. Cantrelle's conduct violated the
Louisiana Open Meetings Law.
Mr. Cantrelle and the LPG filed separate motions to dismiss
for failure to state a claim, which Plaintiff opposed. This
Court heard oral argument on May 16, 2018 and ruled that
Plaintiff failed to state a claim against Defendants.
However, the Court permitted Plaintiff to file an amended
complaint curing the deficiencies within fourteen days.
Plaintiff filed his amended complaint one day late.
Subsequently, Mr. Cantrelle and the LPG again filed separate
motions to dismiss for failure to state a claim, which
Defendant Jimmy Cantrelle's Motion
Cantrelle argues that all of Plaintiff's claims should be
dismissed because his Amended Complaint fails to state a
claim upon which relief can be granted. (Rec. Doc. 25). Mr.
Cantrelle raises three arguments in support of this position.
Mr. Cantrelle argues that Plaintiff has not alleged any set
of facts that establish a claim for First Amendment
employment retaliation under 42 U.S.C. § 1983 because
his speech was not constitutionally protected and, even if it
was entitled to protection, Mr. Cantrelle has qualified
immunity because his actions were objectively reasonable.
(Rec. Doc. 25 at 1). Mr. Cantrelle emphasizes that Plaintiff
merely amended his complaint to state that he was engaging in
speech as a “citizen” instead of as a
“Public Official” as the complaint previously
indicated. (Rec. Doc. 25-1 at 4). Mr. Cantrelle argues that
because Plaintiff's speech does not meet any of the
criteria outlined in Lane v. Franks, 134 S.Ct. 2369,
189 L.Ed.2d 312 (2014), it is properly classified as employee
speech and is not protected by the First Amendment. (Rec.
Doc. 25-1 at 4, 5). Specifically, Mr. Cantrelle asserts that
Plaintiff's speech about Mr. Cantrelle and the Open
Meetings Law is not “truthful” like the speech in
Lane- which involved conviction on multiple criminal
charges-because investigations conducted by the District
Attorney and the Louisiana Board of Ethics yielded no grounds
to bring charges against Mr. Cantrelle for his conduct. (Rec.
Doc. 25-1 at 5). Additionally, Mr. Cantrelle contends that
unlike the speech at issue in Lane, Plaintiff's
speech was not “sworn testimony.” (Rec. Doc. 25-1
at 6). Plaintiff did not allege in his Amended Complaint that
he was compelled to speak. (Rec. Doc. 25-1 at 6). Finally,
Mr. Cantrelle argues that Plaintiff's speech differs from
the speech at issue in Lane in that it was pursuant
to his job as Parish Administrator. (Rec. Doc. 25-1 at 6).
Specifically, Mr. Cantrelle asserts that (1) Plaintiff's
duties included reporting impropriety, (2) the District
Attorney to whom Plaintiff reported Mr. Cantrelle's
conduct is within the chain of command, and (3) assisting
with an investigation into workplace conduct constitutes
employee speech. (Rec. Doc. 25-1 at 7 to 12).
Mr. Cantrelle contends that Plaintiff's whistleblower
claim must be dismissed because Plaintiff has not alleged any
set of facts that satisfy the criteria of La. R.S. 23:967.
(Rec. Doc. 25 at 2). Mr. Cantrelle asserts that
Plaintiff's new allegation that Plaintiff
“discuss[ed]” the matter with unidentified others
is fatally vague for its failure to identify the “who,
what, and when” of the alleged speech. (Rec. Doc. 25-1
at 12). Moreover, Mr. Cantrelle points out that Plaintiff
failed to allege how Mr. Cantrelle allegedly learned about
these unspecified discussions. (Rec. Doc. 25-1 at 13).
Mr. Cantrelle argues that Plaintiff's new theory of
recovery based on a provision of the Louisiana Code of
Governmental Ethics must be dismissed because La. R.S.
42:1169 does not provide a private right of action for a
plaintiff to sue in state or federal court. (Rec. Doc. 25 at
2, Rec. Doc. 25-1 at 3).
Defendant Lafourche Parish Government's Motion
argues that this Court should dismiss Plaintiff's First
Amended Complaint in its entirety because it does not
overcome the deficiencies that prompted the dismissal of
Plaintiff's original Complaint. (Rec. Doc. 26-1 at 1).
The LPG first asserts that dismissal is appropriate because
Plaintiff has failed to plead a claim for First Amendment
retaliation. (Rec. Doc. 26-1 at 4). The LPG echoes Mr.
Cantrelle's contention that Plaintiff's labeling of
the speech at issue as “citizen” rather than
“Public Official” does not remedy his failure to
set forth facts showing a violation of his First Amendment
rights. (Rec. Doc. 26-1 at 4, 5). The LPG argues that
dismissal is appropriate for each of the four categories of
speech upon which Plaintiff bases his retaliation claim
because they constitute employee speech. (Rec. Doc. 26-1 at
7). First, the LPG avers that Plaintiff's objection to