Appealed from the Nineteenth Judicial District Court In and
for the Parish of East Baton Rouge • State of Louisiana
Docket Number 602, 141 • Section 23 The Honorable
William A. Morvant, Judge Presiding
Benjamin M. Castoriano Renee G. Culotta New Orleans,
Louisiana, Jaqueline B. Wilson Baton Rouge, Louisiana
ATTORNEYS FOR APPELLANT DEFENDANT- Louisiana Department of
Arthur Smith, III Seth M. Dornier Baton Rouge, Louisiana
ATTORNEYS FOR APPELLEE PLAINTIFF- Randall Kling
Before: Welch, Chutz, and Lanier, JJ.
Kling-a former classified civil service employee with
probationary status-brought an action against his former
employer, the Louisiana Department of Revenue
("Department"), Office of Alcohol and Tobacco
Control ("ATC"), alleging a free speech retaliation
claim in violation of La. Const. Art. I, § 7. Following
a jury trial, the jury rendered its verdict in favor of Mr.
Kling and against the Department on his free speech
retaliation claim and awarded damages to Mr. Kling for lost
wages, mental anguish and distress, and loss of enjoyment of
life in the total amount of $393, 045.00. In this appeal, the
Department challenges the district court's January 16,
2018 judgment rendered in accordance with the jury's
verdict. For the following reasons, we affirm in part, and
reverse in part.
AND PROCEDURAL HISTORY
Kling was hired by the ATC on September 30, 2010, as an
"Agent 4" with probationary status. On March 10,
2011, Mr. Kling and other ATC employees submitted a complaint
("Complaint") to Cynthia Bridges, the
Department's then-Secretary. The Complaint alleged that
then-ATC Commissioner, Troy Hebert, committed official
misconduct, including violating state law and Department/ATC
policies and directives, engaged in offensive and dangerous
behavior, and threatened, harassed, and intimidated his
employees. The Complaint also detailed the personal
employment-related grievances of twelve named ATC employees,
including Mr. Kling. The Complaint was signed "Concerned
Command Staff and Employees." Mr. Kling personally
submitted three additional complaints in March 2011 regarding
Mr. Hebert's actions to Dee Everett, then-Director of
Human Resources for the Department. On March 30, 2011, the
ATC separated Mr. Kling from his employment.
26, 2011, Mr. Kling filed this lawsuit against the
Department, alleging that the ATC terminated him from his
position in retaliation for submitting complaints regarding
Mr. Hebert in violation of the exercise of his free speech
rights under La. Const. Art. I, § 7. Mr. Kling alleged
that his complaints addressed matters of public concern,
including misconduct within a law enforcement agency, sexual
harassment perpetrated on state workers, gender
discrimination, and systematic employment practices that
adversely affected the functioning of the ATC by placing the
safety of the ATC officers in jeopardy, damaging the morale
of employees, and causing a mass exit of qualified employees.
The relief Mr. Kling sought included reinstatement to his
position, an award of lost wages, an award of fringe benefits
and retirement contributions, loss of enjoyment of life
damages, and mental anguish and distress damages.
a four-day jury trial, the jury rendered its verdict in favor
of Mr. Kling, and against the Department, finding that Mr.
Kling had engaged in speech on a matter of public concern and
that his speech was a substantial motivating factor in his
termination. The jury awarded Mr. Kling special damages in
the amount of $243, 045.00 for lost wages and general damages
in the amount of $75, 000.00 for mental anguish and distress
and $75, 000.00 for loss of enjoyment of life. The district
court signed a judgment in conformity therewith on January
16, 2018, awarding Mr. Kling damages in the amount of $393,
045.00, together with legal interest from May 26, 2011 (the
date of Mr. Kling's request for service of the petition),
until the date of the signing of the judgment, and
thereafter, at the rate fixed in La. R.S.
9:35OO and La. R.S. 13:4202 until the judgment is
paid. The Department was assessed all district court costs in
the amount of $9, 538.06. The Department now appeals.
Kling filed an answer to the appeal pursuant to La. C.C.P.
art. 2133, seeking a reversal of the district court's
January 16, 2018 judgment to the extent it denied his claim
for reinstatement and denied his claim for 6% interest on the
damages award in accordance with La. R.S. 13:5112(c). Mr.
Kling is also seeking an assessment of district court and
appellate court costs to the Department.
Kling claims that the Department terminated his employment in
retaliation and in violation of his free speech rights. To
prevail in a retaliation claim, a public employee must allege
facts demonstrating (1) that his speech involved a matter of
public concern; (2) that he has suffered an adverse
employment action for exercising his right to free speech;
and (3) that the exercise of free speech was a substantial or
motivating factor in the adverse employment action.
Johnson v. S. Univ., 2000-2615 (La.App.
1st Cir. 12/28/01), 803 So.2d 1140, 1146.
of Error No. 1; Speech on a Matter of Public Concern
Department contends that the jury erred in determining that
Mr. Kling engaged in protected speech on a matter of public
concern. The speech at issue consists of the March 10, 2011
Complaint that was drafted and submitted by "Concerned
Command Staff and Employees."
First Amendment of the United States Constitution provides,
"Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the
right of the people peaceably to assemble, and to petition
the Government for a redress of grievances." Article I,
§ 7 of the Louisiana Constitution provides, "No law
shall curtail or restrain the freedom of speech or of the
press. Every person may speak, write, and publish his
sentiments on any subject, but is responsible for abuse of
public employee, Mr. Kling's speech is generally
protected by the United States and Louisiana Constitutions.
See Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct.
1684, 1690, 75 L.Ed.2d 708 (1983); Breen v. Holmes,
2016-1591 (La.App. 1st Cir. 12/7/17), 236 So.3d
632, 638, writ denied, 2018-0049 (La. 3/2/18), 269
So.3d 708. All citizens have the right to criticize public
officials on their official conduct and to comment on matters
of public concern. Tanner v. City of Baton Rouge,
422 So.2d 1263, 1267 (La.App. 1st Cir. 1982),
writ denied. 429 So.2d 128 (La. 1983). A statement
of opinion relating to matters of public concern which does
not contain a provably false factual connotation receives
full constitutional protection because such statements of
opinion are based totally on the speaker's subjective
view, without expressly stating or implying the existence of
underlying facts, and are purely subjective statements that
can be neither true nor false. Breen, 236 So.3d at
638. This right is not only important to the individual, but
also is essential to the democratic process. Free criticism
of official conduct and free speech on matters of public
interest are essential to ensuring the lawful and proper
functioning of the government. Tanner, 422 So.2d at
a public employee does not possess an absolute, unfettered
right to free speech. Foreman v. LSU Health Scis.
Ctr., 2004-0651 (La.App. 1st Cir. 3/24/05),
907 So.2d 103, 108, writ denied, 2005-1084 (La.
6/24/05), 904 So.2d 742. The state, as an employer, has a
legitimate interest and right in regulating to some degree
the speech of its employees. Tanner, 422 So.2d at
1267. Whether the speech of a public employee is
constitutionally protected is determined by balancing the
interest of the employee, as a citizen, in commenting upon
matters of public concern against the interest of the
government (national, state, or local), as an employer, in
promoting the efficiency of the public services it performs
through its employees. See Pickering v. Bd. of Educ,
391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811
(1968). It is only when a public employee speaks as a citizen
upon matters of public concern, rather than as an employee
upon matters only of personal interest, that First Amendment
protection lies. Foreman, 907 So.2dat 108.
United States Supreme Court has described speech upon matters
of public concern as "relating to any matter of
political, social, or other concern to the community."
Foreman, 907 So.2d at 108-09 (citing
Connick, 461 U.S. at 146, 103 S.Ct. at 1690). Speech rises to
the level of public concern if an individual speaks primarily
as a citizen rather than as an employee, or if the
information conveyed would be of relevance to the
public's evaluation of the performance of governmental
agencies. Dodds v. Childers, 933 F.2d 271, 273 (5th
Cir. 1991). The existence of an element of personal interest
on the part of an employee in the speech does not prevent
finding that the speech as a whole raises issues of public
concern. Id. On the other hand, an employee cannot
transform a personal conflict into an issue of public concern
simply by arguing that individual concerns might have been of
interest to the public under different circumstances.
Id. The mere fact that the topic of the
employee's speech was one in which the public might or
would have had a great interest is of little moment because
almost anything that occurs within a public agency could be
of concern to the public. Id. In analyzing whether
speech constitutes a matter of public concern, the focus is
on the motive of the speaker "i.e., whether the
speech was calculated to disclose misconduct or
dealt with only personal disputes and grievances with no
relevance to the public interests." Normand v. City
of Baton Rouge, Police Dep't, 572 So.2d 1123, 1126
(La.App. 1st Cir. 1990) (citing
McEvoy v. Shoemaker, 882 F.2d 463, 466 (10th Cir.
1989)) (emphasis in original).
an employee's speech addresses a matter of public concern
must be determined by the content, form, and context of a
given statement, as revealed by the whole record.
Blackwell v. Laque, 275 Fed.Appx. 363, 369 (5th Cir.
2008); Foreman, 907 So.2d at 109. An employee's
intent to disseminate his statement's content to the
public and his motivation in making the statement are also
relevant factors in determining whether a statement is of
public concern. Id. Whether the speech at issue is
on a matter of public concern is a question of law that must
be determined by the court using the de novo
standard of review. Dodds, 933 F.2d at 273; McGowan v.
Hous. Auth. of New Orleans, 2012-1418 (La.App.
4th Cir. 3/27/13), 113 So.3d 1143, 1152
(citing Salge v. Edna Indep. Sch. Dist, 411
F.3d 178, 184 (5th Cir. 2005)); see TCC Contractors, Inc.
v. Hosp. Serv. Dist. No. 3 of Par. of Lafourche,
2010-0685 (La.App. 1st Cir. 12/8/10), 52 So.3d
1103, 1108. Our review requires examination of the statements
and the circumstances under which they were made.
Breen, 236 So.3d at 638.
Department contends that Mr. Kling was not involved in
drafting or submitting any portion of the Complaint apart
from his individualized section. The Department argues that
Mr. Kling's speech consisted solely of his individualized
section, which contains internal employment-related
issues-i.e., his removal from a position;
reassignment of work duties and location; no reimbursement
for travel-related expenses-that are of a personal, not
sixteen-page Complaint begins with an introductory section,
which includes the following:
The Command staff and employees of the [ATC] have significant
concerns which, we feel, must be brought to your attention.
These concerns include threats and intimidation directed by
Assistant Secretary Troy Hebert toward employees of this
office; Mr. Hebert's dangerous directives and behavior,
and his numerous violations of ATC policy, Department of
Revenue Policy, and state law.
Further, ATC requests that the Department of Revenue conduct
a complete investigation regarding the following alleged
violations of policy, procedure, rules, and laws,
precipitated by Mr. Hebert[.]
Complaint then lists forty-five bullet points that contain a
number of allegations of violations of laws and policies. It
is well-established that speech relating to official
misconduct almost always involves matters of public concern.
Charles v. Grief, 522 F.3d 508, 514 (5th Cir. 2008).
The disclosure of misbehavior by public officials is a matter
of public interest and therefore deserves constitutional
protection. Brawner v. City of Richardson, Tex., 855
F.2d 187, 191-92 (5th Cir. 1988).
end of the bulleted list, the Complaint states that
"[i]n addition to the alleged infractions listed above,
a number of employees have been the direct recipient of Mr.
Hebert's aggressive behavior. In the following reports,
these employees will provide the details of the harassment
and intimidation that they have endured at the hands of Mr.
Hebert[.]" The following section is titled,
"Harassment and Intimidation of Employees," and
contains individual sub-sections detailing the personal
employment-related grievances of twelve ATC employees,
including Mr. Kling.
Department concedes in its brief on appeal that the
introductory section (including the bulleted list)
constitutes speech on a matter of public concern by
"whoever authored that section." However, the
Department avers that Mr. Kling had no part in drafting the
introductory section and was only involved in the drafting of
his individualized section and that a free speech retaliation
claim based on the speech of others does not exist. Because
Mr. Kling's individualized section contained speech of a
personal, not public, nature, the Department ...