Wilson v. Tregre

• Decision Date: 22 May 2015
• Docket Number: No. 14–31179,14–31179
• Citation: 787 F.3d 322
• Parties: Tregg WILSON, Plaintiff–Appellant v. Mike TREGRE, Sheriff, Individually and in his Official Capacity as Sheriff, St. John the Baptist Parish, Louisiana, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

787 F.3d 322

Tregg WILSON, Plaintiff–Appellant

v.Mike TREGRE, Sheriff, Individually and in his Official Capacity as Sheriff, St. John the Baptist Parish, Louisiana, Defendant–Appellee.

No. 14–31179

United States Court of Appeals, Fifth Circuit.

May 22, 2015.

Todd Slack, Huber, Slack, Thomas & Marcelle, L.L.P., New Orleans, LA, for Plaintiff–Appellant.

Carl A. Butler, Michael L. Fantaci, Deborah A. Villio, LeBlanc Butler, L.L.C., Kenner, LA, for Defendant–Appellee.

Appeal from the United States District Court for the Eastern District of Louisiana, USDC No. 2:13–CV–5612.

Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.

Opinion

STEPHEN A. HIGGINSON, Circuit Judge:

Tregg Wilson appeals the district court's grant of summary judgment in favor of his former employer, Sheriff Mike Tregre, dismissing his claims under 42 U.S.C. § 1983 and Louisiana state law. For the following reasons, we AFFIRM.

FACTS AND PROCEEDINGS

Wilson was formerly employed as Chief Deputy in the Sheriff's office of St. John the Baptist Parish, Louisiana. In May 2013, during his employment as Chief Deputy, Wilson learned that the interrogation rooms in the Criminal Investigative Division of the Sheriff's Office were under 24–hour video and audio surveillance. There was visible camera equipment in each room. In addition to sending a video feed to the Criminal Investigative Division's computer network where the interviews could be manually recorded, Wilson learned that the equipment also operated on a motion-activated sensor that automatically sent recordings to a “Milestone Server” that saved recordings for up to thirty days.

Wilson, who is also an attorney, believed that this recording equipment might present legal problems for the Sheriff's Office. He discussed his concerns with Sheriff Tregre, who then ordered an internal investigation. Wilson also reported his concerns to Internal Affairs and the District Attorney, who requested that the State Police investigate the issue. The Louisiana State Police conducted an investigation and interviewed Wilson. The State Police ultimately issued a report that concluded that the Sheriff's Office had not violated any criminal laws. The District Attorney also requested that the Sheriff's Office produce all videos recorded in the interrogation rooms so that they could be reviewed under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

On June 10, 2013, Sheriff Tregre terminated Wilson's employment. Wilson then filed this lawsuit, raising claims under 42 U.S.C. § 1983, the Louisiana Constitution, and the Louisiana whistleblower statutes. The district court granted summary judgment in favor of Sheriff Tregre and dismissed all of Wilson's claims. The district court also denied Wilson's motion for a new trial, which the district court construed as a motion to amend the judgment, and Wilson's motion to voluntarily dismiss without prejudice one of Wilson's whistleblower claims. This appeal timely followed.

STANDARD OF REVIEW

This court reviews a district court's grant of summary judgment de novo, applying the same standards as the district court. Rogers v. Bromac Title Servs., L.L.C., 755 F.3d 347, 350 (5th Cir.2014). Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In deciding whether a fact issue exists, courts must view the facts and draw reasonable inferences in the light most favorable to the nonmoving party. Scott v. Harris, 550 U.S. 372, 378, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007). This court is “not limited to the district court's reasons for its grant of summary judgment and may affirm the district court's summary judgment on any ground raised below and supported by the record.” Rogers, 755 F.3d at 350 (internal quotation marks omitted).

DISCUSSION

I. First Amendment Retaliation Claim

To succeed in a First Amendment retaliation claim under § 1983, a public employee must show: “(1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government's interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.” Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir.2007) (internal quotation marks and citations omitted). Although the district court held that Wilson suffered an adverse employment action, the district court nevertheless held that Wilson's First Amendment claim failed because there was no genuine issue of fact on the second element, that is, that Wilson was speaking not as Chief Deputy of the Sheriff's Office, but as a private citizen. We agree.

“An employee is not speaking as a citizen—but rather in his role as an employee—when he makes statements pursuant to his official duties.” Id. (alterations omitted) (quoting Garcetti v. Ceballos, 547 U.S. 410, 421, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006) ) (internal quotation marks omitted). As the Supreme Court recently explained, “[t]he critical question under Garcetti is whether the speech at issue is itself ordinarily within the scope of an employee's duties.” Lane v. Franks, ––– U.S. ––––, 134 S.Ct. 2369, 2379, 189 L.Ed.2d 312 (2014).

In this case, Wilson was acting in his official duties as the Chief Deputy at all the relevant times. When Wilson relayed his concerns to Sheriff Tregre and to Internal Affairs, he was simply reporting potential criminal activity up the chain of command. See Davis v. McKinney, 518 F.3d 304, 313 & n. 3 (5th Cir.2008). Wilson's disclosures to the District Attorney and then to the State Police also fell within the scope of his employment. As a law enforcement officer, Wilson was required to report any action that he believed violated the law. See La. Att'y Gen. Op. No. 94–105 (Apr. 13, 1994), available at 1994 WL 330222 (explaining that the Parish Sheriff has a duty to “enforce[e] all state, parish, local laws and ordinances” “even in situations where others are charged with the duty of enforcing ordinances”); see also Charles v. Grief, 522 F.3d 508, 514 (5th Cir.2008) (recognizing that a sheriff's deputy holds a “professional position of trust and confidence”); Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir.2007) (per curiam) (recognizing that speech required by one's position as an employee is not protected by the First Amendment). In short, because we agree with the district court that Wilson's complaints about the recordings were made within the scope of his employment, his speech was not protected by the First Amendment.

II. Supplemental Jurisdiction

After the district court dismissed Wilson's First Amendment claim, the only claims remaining in the lawsuit arose under Louisiana state law. When a district court dismisses all federal claims in a lawsuit, “the court generally retains discretion to exercise supplemental jurisdiction, pursuant to § 1367, over pendent state-law claims.” Del–Ray Battery Co. v. Douglas Battery Co., 635 F.3d 725, 731 (5th Cir.2011). The district court “may,” however, “decline to exercise supplemental jurisdiction over a [state-law] claim ... if ... the claim raises a novel or complex issue of State law.” 28 U.S.C. § 1367(c). This court reviews the district court's decision to retain supplemental jurisdiction for abuse of discretion, looking both to the statutory factors in § 1367(c) and the common law factors of “judicial economy, convenience, fairness, and comity.” Enochs v. Lampasas Cnty., 641 F.3d 155, 159 (5th Cir.2011).

On appeal, Wilson argues that the district court erred in exercising supplemental jurisdiction because his state-law claims were novel and complex. We find, however, that the district court did not abuse its discretion because Wilson's state-law claims were neither novel nor complex. Moreover, as the district court recognized, the claims were ripe for disposition: the matter had been pending in the district court for one year, discovery had closed, and the case was set for trial less than one month after the district court's order. We agree with the district court that it would have been a waste of judicial resources to decline to exercise supplemental jurisdiction.

III. Whistleblower Claims

Moving to the merits of Wilson's state-law claims, Wilson alleged two whistleblower claims: one under Louisiana Revised Statute § 23:967 and the other under Louisiana Revised Statute § 42:1169. The district court granted summary judgment on both.

a. La.Rev.Stat. § 23:967

To qualify for protection under the Louisiana Whistleblower Statute, a plaintiff must prove that his employer committed an actual violation of state law. Ross v. Oceans Behavioral Hosp. of Greater New Orleans, 14–368, p. 7 (La.App. 5 Cir. 11/25/14); 165 So.3d 176, 2014 WL 6687260 ; Mabry v. Andrus, 45,135, p. 9 (La.App. 2 Cir. 4/14/10); 34 So.3d 1075, 1081. The statute states:

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.

La.Rev.Stat. Ann. § 23:967(A).

The district court held that Wilson failed to qualify for protection under the Whistleblower Statute because Wilson failed to demonstrate that the Sheriff's Office actually violated any law. First, the district court held that that the attorney-client privilege is a testimonial privilege that a witness or a litigant can assert, not a substantive law that the Sheriff's Office could have violated. Next, the district court held that Wilson failed to show a violation of either the Fourth Amendment or the Louisiana wiretapping laws because Wilson...