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Kling v. Louisiana Department of Revenue

Court of Appeals of Louisiana, First Circuit

July 18, 2019

Randall Kling
Louisiana Department of Revenue

          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 Revenue

          J. Arthur Smith, III Seth M. Dornier Baton Rouge, Louisiana ATTORNEYS FOR APPELLEE PLAINTIFF- Randall Kling

          Before: Welch, Chutz, and Lanier, JJ.

          WELCH, J.

         Randall 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.


         Mr. Kling was hired by the ATC[1] on September 30, 2010, as an "Agent 4" with probationary status.[2] 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.

         On May 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.

         Following 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[3] 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.

         Mr. 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.


         Mr. 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.

         Assignment of Error No. 1; Speech on a Matter of Public Concern

         The 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."

         The 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 that freedom."

         As a 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 1267.

         However, 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.

         The 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).

         Whether 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.

         The 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 public, nature.

         The 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[.]

         The 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).

         At the 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.

         The 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 ...

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