336 So.3d 977
La. Ct. App.2022Background
- Off-duty NOPD officer James Cunningham was arrested after a domestic incident (Jan 13, 2015); NOPD held a disciplinary hearing on March 2, 2016 which Cunningham did not attend, and he was terminated March 17, 2016.
- Cunningham appealed his termination to the Civil Service Commission; the Commission (Oct. 17, 2017) upheld the termination and found no due-process violation because Cunningham declined to attend the hearing (invoking Fifth Amendment advice of counsel).
- Cunningham appealed to the Fourth Circuit, which in 2018 reversed the Commission as to penalty and ordered reinstatement with a ten-day suspension.
- Cunningham filed a Petition for Damages (2017) and later amended pleadings adding claims (due process, retaliation, intentional infliction of emotional distress, defamation) and individual-capacity claims against several NOPD officials.
- The City and certain NOPD employees filed successive peremptory exceptions of no cause of action; the trial court granted the Third Exception and dismissed Cunningham’s petition with prejudice (Oct. 15, 2020).
Issues
| Issue | Cunningham's Argument | City/Employees' Argument | Held |
|---|---|---|---|
| Deprivation of due process | He alleges he lacked notice/opportunity to contest termination (was on medical leave) and that NOPD/officials deprived his liberty interest in employment. | The Commission already adjudicated and rejected the due-process claim; issue preclusion bars relitigation; pleadings otherwise lack factual detail. | Dismissed — claim precluded by prior Commission judgment and pleadings fail to allege operative facts (no adequate notice/opportunity allegations). |
| Retaliation (whistleblower) | He says he reported due-process violations and was terminated in retaliation. | The retaliation theory depends on the precluded due-process claim; pleadings fail to allege either a reasonable belief in ethical violations (La. R.S. 42:1169) or an actual legal violation (La. R.S. 23:967). | Dismissed — precluded and insufficiently pleaded under applicable whistleblower standards. |
| Intentional infliction of emotional distress (IIED) | Defendants engaged in extreme, outrageous conduct causing severe distress. | Job discipline and investigatory conduct is privileged and, without a pattern of deliberate harassment or extreme facts, is not actionable. | Dismissed — pleadings state only conclusory assertions; no extreme/outrageous conduct or severe distress alleged to survive exception. |
| Defamation | Defendants made false, damaging statements during the disciplinary process and to third parties, harming reputation and employment prospects. | Communications by law enforcement in investigations enjoy a qualified privilege; plaintiff fails to identify false statements or facts showing abuse of privilege. | Dismissed — pleadings do not identify defamatory statements or facts overcoming qualified privilege; elements not pleaded. |
| Individual-capacity claims against NOPD officials | He asserts officials personally denied due process and interfered with employment opportunities (refused records, maintained integrity complaints). | Individual-capacity liability requires pleading that each official acted under color of law to violate a constitutional right; core due-process claim is precluded and factual specifics are lacking. | Dismissed — claims precluded or inadequately pleaded as to individual acts and constitutional deprivation. |
Key Cases Cited
- Cunningham v. New Orleans Police Dep’t, 257 So.3d 801 (La. App. 4 Cir. 2018) (prior Fourth Circuit decision reversing Commission and ordering reinstatement)
- Fertitta v. Regions Bank, 311 So.3d 445 (La. App. 4 Cir. 2020) (standards for exception of no cause of action)
- White v. New Orleans Ctr. for Creative Arts, 281 So.3d 813 (La. App. 4 Cir. 2019) (no-cause-of-action review principles)
- Industrial Contractors v. Durbin, 837 So.2d 1207 (La. 2003) (accept well-pleaded facts on exception)
- Badeaux v. Southwestern Computer Bureau, Inc., 929 So.2d 1211 (La. 2006) (exception of no cause of action jurisprudence)
- Trentecosta v. Beck, 703 So.2d 552 (La. 1997) (qualified privilege for law-enforcement communications; abuse standards)
- Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669 (La. 2006) (elements of defamation claim)
- Moore v. Ware, 839 So.2d 940 (La. 2003) (property interest/due-process principals for civil-service employees)
- Mederos v. St. Tammany Parish Government, 199 So.3d 30 (La. App. 1 Cir. 2016) (limits on IIED recovery for routine employment discipline)
- Global Marketing Sols., L.L.C. v. Chevron U.S.A., Inc., 286 So.3d 1054 (La. App. 1 Cir. 2019) (elements for issue preclusion)