NO. 2019 CA 1455
STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT
OCT 14 2020
Appealed from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Case No. C665201 The Honorable William
BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.
Jill L. Craft, W. Brett Conrad, Jr., Baton Rouge, Louisiana, Counsel for Plaintiff/Appellant Cathy Derbonne
Jeff Landry, Attorney General, Christine S. Keenan, Special Assistant Attorney General, Eric R. Miller, Baton Rouge, Louisiana, Counsel for Defendant/Appellee Louisiana State Police Commission
THERIOT, J.
Cathy Derbonne appeals the August 14, 2019 judgment of the Nineteenth Judicial District Court granting the Louisiana State Police Commission‘s peremptory exception of no cause of action and dismissing with prejudice Derbonne‘s petition for damages and her supplemental, amending, and restated petition. For the following reasons, we vacate the August 14, 2019 judgment, render judgment finding that Cathy Derbonne‘s petition sets forth both a cause of action and a right of action, and remand this matter for further proceedings.
FACTS AND PROCEDURAL HISTORY
On January 9, 2018, Cathy Derbonne filed a petition, naming as defendant the State Police Commission (“the Commission“). In her petition, Derbonne alleged that she had been hired as the Executive Director of the Commission in 2009. Derbonne claimed that, in her capacity as Executive Director, she was responsible for oversight of the Commission, which included ensuring the Commission and its members abided by their obligations under the law. According to Derbonne, on December 18, 2015, she was notified that active classified members of the Louisiana State Police, through the Louisiana State Troopers Association (“LSTA“), were making political contributions and engaging in political activities, and that active members of the Commission were making political contributions, all in violation of
The petition alleged that, upon receipt of this information, Derbonne began an investigation of the prohibited activities of current, active, and classified members of the State Police Service and brought the matters to the attention of the Commission. Derbonne alleged that on January 13, 2016, Franklin Kyle III, Chairman of the Commission, sent an email to Derbonne advising that she was not to take any steps regarding the LSTA‘s political activities and, further, stating that the Commission had no jurisdiction over the LSTA, only its classified employees/members. The next day, Derbonne was advised that the Executive Director of the LSTA had been making political contributions in his name, but that he was reimbursed by the LSTA from dues collected from its members.
Derbonne further alleged that she subsequently reported the prohibited activities to multiplе entities outside of the Commission. On March 7, 2016, Derbonne reported the improper illegal activities to the Louisiana Board of Ethics. On March 16, 2016, she forwarded a written report of her findings to the Governor and his counsel. She met with the Governor‘s counsel on March 28, 2016, and was advised that the Commission members who had committed the prohibited activities, as well as Chairman Kyle, would be given the opportunity to resign.
Derbonne‘s petition further alleged that, on March 29, 2016, Commission Member Freddie Pitcher resigned from the Commission. On April 14, 2016, Commission Chairman Kyle and Commission Member William Goldring resigned. Also on April 14, 2016, Derbonne listed the matter of prohibited political activities on the Commission‘s Agenda as an item to investigate
Derbonne alleged that, on June 24, 2016, at an LSTA convention held in Lafayette, Louisiana, Commission Member Thomas Doss stated that Derbonne had caused the resignation of three Commission members, that Derbonne was not following Commission rules and policy, that Derbonne had hired outside counsel without authorization, and that what was happening with the Commission and LSTA was Derbonne‘s fault and that she “had lost her mind.” Derbоnne was subsequently advised that Commission Member Doss had been “monitoring and observing” her daily routine. Doss was elected as Commission Chairman on July 14, 2016.
On July 26, 2016, Commission Chairman Doss allegedly emailed Derbonne requesting that Derbonne initiate a rule process that would prevent her from having control over decisions and holding information, and proposing the creation of an Executive Committee which would perform the functions of Derbonne‘s position. Further, on August 11, 2016, the Commission allegedly attempted to reduce Derbonne‘s pay. Derbonne alleges that, during this same time frame, State Police Colonel Michael Edmonson and аt least four of his top deputies had received unlawful and unauthorized pay increases. On September 13, 2016, she reported the matter of illegal pay to another outside entity, the Legislative Fiscal Office. On October 13, 2016, Derbonne allegedly notified the State Police and the Commission that the Commission had not received proper approval by the Governor to implement the newly proposed pay plan. Derbonne alleges that Commission Chairman Doss ignored her complaints and, in retaliation, distributed a proposed Commission Rule that would drastically change Derbonne‘s duties as Executivе Director. Additionally, during a November 10, 2016 Commission meeting, Derbonne again alleged that the proposed pay increases were unlawful unless approved by the Louisiana legislature and the Commission.
On December 8, 2016, at a Commission meeting, Commission members allegedly requested that Derbonne create a position of Deputy Director in case her husband became ill or she “got in a car wreck on her way ‘here’ for a meeting,” which Derbonne considered a threat. On January 7, 2017, Derbonne allegedly received an anonymous letter warning her that Commission Chairman Doss was leading a “secret charge” tо have her removed as Executive Director, at the behest of upper command. On January 10, 2017, Derbonne received a pre-prepared Agenda with a letter addressed to her, stating that the Commission intended to discuss her professional competence at the next Commission meeting, and an Agenda item of consideration regarding whether her employment should be continued or terminated.
Prior to the January 12, 2017 Commission meeting, a Commission member allegedly told Derbonne that the Commission had the necessary votes to fire her. At the meeting, where the local media was present, the Commission allegedly accused Derbonne of violating the law by lying to a legislative committee. Before reaching the Agenda items relating to Derbonne‘s continued employment, Commission Chairman Doss requested a recess. During the recess, members of the Commission allegedly pressured Derbonne to resign, reiterating that they had enough votes to fire her. Derbonne asserts that, having no reasonable alternative, she resigned, believing that she had engaged in activities protected
As a result of the above, Derbonne alleged that she sustained damages which include, but are not limited to, lost pay and benefits, loss of earning cаpacity, humiliation and embarrassment, severe emotional distress, mental anguish, and all other damages that would be fully shown at trial of this matter.
On March 28, 2018, the Commission filed a peremptory exception of no cause of action. The Commission argued that Derbonne failed to allege material facts that are necessary to establish the essential elements of a claim under
A hearing on the Commission‘s exception of no cause of action was conducted on February 11, 2019. In a judgment signed on March 11, 2019, the trial court granted the Commission‘s exception of no cause of action. The judgment further ordered Derbonne to amend her pleadings within thirty days from the date that the ruling was rendered in open court.
On March 12, 2019, Derbonne filed a supplemental, amending, and restated petition. This amendment provided additional informаtion regarding the responsibilities of the Commission, including Derbonne‘s assertions that the Commission has a duty to investigate allegations of misconduct, hold hearings, and render orders when violations of its rules occur. Derbonne asserted that the Commission deliberately, and in violation of the Louisiana Constitution, Commission rules, and Louisiana law, failed to take any action against its members for their alleged illegal actions, and instead “took reprisal against [Derbonne], including threatening her job, accusing her of false violations of law, removing her job duties, cutting her pay, and constructively discharging her[.]” The amended petition also alleged that, on July 29, 2016, the Commission, through Commission Chairman Doss, falsely accused Derbonne of violating Commission rules by providing a copy of the Louisiana State Police Policy and Procedures to the media. Derbonne alleged that these accusations were made in reprisal for her complaints and opposition to the Commission‘s violations of law. Additionally, Derbonne alleged that on May 14, 2017, the Commission was aware and/or had hired a private investigator to follow her and report all of her activities, including her personal activities, because of her actions.
On April 11, 2019, the Commission filed аnother peremptory exception of no cause of action, this time with respect to Derbonne‘s supplemental, amending, and restated petition. The Commission again asserted that Derbonne failed to plead sufficient facts to establish that her employer, the Commission, had engaged in a workplace act or practice that resulted in an actual violation of state law. The Commission further argued that Derbonne admitted that it was her responsibility as Executive Director of the Commission to ensure that the Commission and its members “abided by their obligations under the law” and that, consequently, Derbonne cannot now claim whistleblower protection for those alleged acts of non-compliance that fell within her responsibility to report and correct.
A hearing on the Commission‘s second exception of no cause of action was held on
After considering the pleadings, memoranda, argument of counsel, and the law, and for reasons orally assigned, the Court overruled the Exception of No Cause of Action as to whether the Plaintiff sufficiently [pleaded] a cause of action under
La. R.S. 23:967 but sustained the Exception of No Cause of Action that the Plаintiff did not qualify as a whistleblower within the meaning ofLa. R.S. 23:967 .IT IS HEREBY ORDERED that Defendant‘s Exception of No Cause of Action is GRANTED and Plaintiff‘s Petition for Damages and Supplemental, Amending, and Restated Petition are DISMISSED WITH PREJUDICE at plaintiff‘s cost.
In oral reasons, the trial court stated that Derbonne‘s original petition failed to allege that her employer, the Commission, had committed any specific violations of state law. The trial court acknowledged that Derbonne had alleged that members of the Commission had given improper contributions; that the LSTA had acted improperly; that Colonel Edmonson had made some improper promоtions and pay raises; and that the Governor had made some improper appointments to the Commission. However, the trial court noted that none of the above were Derbonne‘s employers.
Regarding the amended petition, the trial court stated that Derbonne‘s amendments alleged that she had made these reports to her employer and that the employer had failed to respond to those reports. The trial court further stated:
And I understand the argument of the Commission, is that ... there‘s a discretionary element to it. And as I look at the element of discretion, is that, they may undertake an investigation. They‘re not obligated to do that. But I would think that once they undertake that investigation and a violation is discovered, I don‘t think that discretion then applies and says, well, we may or may not pursue that. I think, for the purposes of the exception of no cause of action, the amended petition, as to at least the violation, states a cause of action.
The trial court then referenced Matthews v. Military Dept. ex rel. State, 2007-1337 (La. App. 1 Cir. 9/24/07); 970 So.2d 1089, 1089-90 (per curiam), writ denied, 2007-2316 (La. 2/15/08); 976 So.2d 177, cert. denied, 555 U.S. 818, 129 S.Ct. 82, 172 L.Ed.2d 29 (2008), in which this court found in pertinent part that the plaintiff was afforded no protection under
This appeal followed.
ASSIGNMENTS OF ERROR
Derbonne assigns the following as error:
(1) Louisiana Revised Statutes 23:967, Louisiana‘s anti-reprisal statute, does not exclude protests, reports, and oppositions to violations of the law by employees simply because his/her job may require such reporting. For example, Louisiana requires its employees to report sexual harassment, but if the trial court‘s opinion in this instance stands, then no state employeе could ever sue under
(2) The plain language of
STANDARD OF REVIEW
The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. The burden of demonstrating that the petition states no cause of action is upon the mover. Peremptory exceptions raising the objection of no cause of action present legal questions, which are reviewed using thе de novo standard of review. The court reviews the petition and accepts well-pleaded allegations of fact as true. Reyer v. Milton Homes, LLC, 2018-0580 (La. App. 1 Cir. 2/25/19); 272 So.3d 604, 607. No evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action.
An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim that would entitle him to relief. If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity to present evidence at trial. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 (La. 3/17/06); 929 So.2d 1211, 1217.
DISCUSSION
In two related assignments of error, Derbonne argues that
The Commission argues that by her own admission, Derbonne was responsible for the day to day administration of the Commission, including oversight of the Commission and ensuring that the Commission and its members abided by their obligations under the law. The Commission argues that, pursuant to this court‘s precedent in Matthews, 970 So.2d at 1090, Derbonne is not entitled to protection under
Derbonne‘s Cause of Action
As a preliminary matter, we note that the Commission‘s peremptory exception of no cause of action as to Derbonne‘s supрlemental, amending, and restated petition should have been filed as a peremptory exception of no right of action. Although the two exceptions are often confused, the peremptory exceptions of no right of action and no cause of action are separate and distinct.
The Commission argues that Derbonne is not a whistleblower within the meaning of
The Louisiana Whistleblower Statute,
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
B. An employee may commence a civil action in a district court where the violation occurred against any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs.
C. For the purposes of this Section, the following terms shall have the definitions ascribed below:
(1) “Reprisal” includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section; however, nothing in this Section shall prohibit an employer from enforcing an established employment policy, procedure, or practice or exempt an employee from compliance with such.
(2) “Damages” include compensatory damages, back pay, benefits, reinstatement, reasonable attorney fees, and court costs resulting from the reprisal.
Regarding the first element required to show that an employer violated
Derbonne‘s Right of Action
As previously stated, the trial court found that Derbonne did not qualify as a whistleblower within the meaning of
We do not know all of the particular facts involved in Matthews, 970 So.2d 1089. The short discussion in the writ decision states that plaintiff made “reports relative to the State‘s potential liability for acquisition of the Gillis Long Hansen Disease Center[.]” The writ decision further states that “plaintiff‘s allegations relative to the Gillis Long Hansen Disease Center indicate that plaintiff was merely expressing his concerns about the State‘s potential liability in acquiring same, which concerns do not amount to whistleblowing.” Matthews, 970 So.2d at 1090. Additionally, the writ points out that, regarding the applicability of
in which the plaintiff did not allege that he attempted to disclose or threatened to disclose any illegal activity, it appears that the case before us is distinguishable. Accordingly, Matthews is not binding on this court, and there is no reason to overrule, modify, or amend the writ panel‘s decision.3
The Commission cites Stone v. Entergy Services, Inc., 2008-0651 (La. App. 4 Cir. 2/4/09); 9 So.3d 193, 200, writ denied, 2009-0511 (La. 4/17/09); 6 So.3d 797, for the proposition that an employee who reports a potential violation of the law, when such reporting is part of that employee‘s normal job responsibilities, is not protected as a whistleblower. Stone involved
Louisiana‘s application of the job duties exclusion is discussed by Professor Nancy M. Modesitt in her article The Garcetti Virus.4 Modesitt points out that neither Matthews nor Stone assess the language of their respective whistleblower
statutes or provide any rationale for adopting the job duties exclusion. Nancy M. Modesitt, The Garcetti Virus, 80 U. Cin. L. Rev. 137, 173-74. Modesitt further notes that courts, including state courts, that have considered the job duties exclusion have failed to follow the normal process of statutory interpretation when deciding whether the exclusion applies. Id. at 167.
Accordingly, we now turn to
Words and phrases shall be read with their context and construed according to the common and approved usage of the language.
The text of
If, as stated in Willis, 141 F.3d at 1144, the purpose of whistleblowing laws is “to protect government employees who risk their own personal job security for the advancement of the public good by disсlosing abuses by government personnel[,]” that protection should also apply to employees performing their job duties. See also Modesitt, 80 U. Cin. L. Rev. at 156 (Noting that “employees are likely to have the most accurate information about wrongdoing” but, because of the job duties exclusion, “are least likely to be protected if they disclose it“). It appears that the Louisiana legislature intended to protect whistleblowing employees, whether those employees were performing their job duties or not.
Derbonne alleges that she reported violations of law to the Commission, as well as to the Governor, the Legislative Fiscal Office, and the Louisiana Board of Ethics. Therefore, we find that Derbonne has stated a right of action under
DECREE
For the above and foregoing reasons, we vacate the August 14, 2019 judgment of the trial court granting the State Police Commission‘s peremptory exception of no cause of action and dismissing with prejudice Cathy Derbonne‘s petition for damages and her supplemental, amending, and restated petition. We render judgment finding that Cathy Derbonne‘s petition states both a cause of action and a right of action. This matter is remanded for further proceedings consistent with this opinion. Costs in the amount of $1,779.00 are assessed to Appellee, the State Police Commission.
VACATED, RENDERED, AND REMANDED.