Broussard v. Lafayette City-Parish Consol. Gov't
| Decision Date | 05 September 2014 |
| Docket Number | Civil Action No. 13–CV–2872. |
| Citation | 45 F.Supp.3d 553 |
| Parties | Dana L. BROUSSARD v. LAFAYETTE CITY–PARISH CONSOLIDATED GOVERNMENT. |
| Court | U.S. District Court — Western District of Louisiana |
Dana L. BROUSSARD
v.
LAFAYETTE CITY–PARISH CONSOLIDATED GOVERNMENT.
Civil Action No. 13–CV–2872.
United States District Court, W.D. Louisiana, Lafayette Division.
Signed Sept. 4, 2014
Filed Sept. 5, 2014
Motions granted in part and denied in part.
[45 F.Supp.3d 561]
John Christopher Alexander, Sr., Alexander Law Firm, Stanley Stephen Spring, II, Spring & Spring, Baton Rouge, LA, for Dana L. Broussard.
Michael P. Corry, Hallie Pilcher Coreil, Briney Foret Corry, Jason B. Boudreaux, Paul D. Gibson, Gibson Gruenert, Lafayette, LA, for Lafayette City–Parish Consolidated Government.
[45 F.Supp.3d 562]
JUDGMENT
REBECCA F. DOHERTY, District Judge.
This matter was referred to United States Magistrate Judge Patrick Hanna for Report and Recommendation. After an independent review of the record, absent any objections filed, this Court concludes that the Report and Recommendation of the Magistrate Judge is correct and adopts the findings and conclusions therein as its own. As such, it is hereby ORDERED that the defendants' motions to dismiss pursuant to Rule 12(b)(5) and 12(b)(6) [Rec. Docs. 6–7] are GRANTED in part, and DENIED in part in the following particulars:
1. The defendants' motions are GRANTED with regard to all of Plaintiff's claims predicated upon alleged violations of the Fourth, Fifth, and/or Fourteenth Amendments. These claims are therefore DISMISSED.
2. The defendants' motions are GRANTED with regard to Plaintiff's claims under § 1983 against the defendants Durel, Stanley, Craft, Domingue, Alfred, Montgomery, Head, Rees and Brown, in their official capacities, as well as the claims against the Lafayette City–Parish Police Department to the extent it is named as a specific defendant. These claims are DISMISSED.
3. The defendants' motions are GRANTED with regard to the claims under § 1983 asserted against the defendants Durel, Stanley, Alfred, Head, Rees, and Domingue in their individual capacities. These claims are DISMISSED.
4. The defendants' motions are GRANTED with regard to the plaintiff's claims under Title VII of the Civil Rights Act. These claims are DISMISSED.
5. The defendants' motions are GRANTED with regard to the plaintiff's claims for punitive damages against the municipal defendant. These claims are DISMISSED.
6. The defendants' motions are GRANTED with regard to the plaintiff's state law tort claims, whistleblower claims and state employment discrimination claims(LEDL). These claims are DISMISSED.
7. The defendants' motions to dismiss are DENIED in all other respects.
8. The defendants' motions for sanctions and the alternative motions for summary judgment on qualified immunity are DEFERRED.
Currently pending before the Court are the defendants' motions to dismiss pursuant to Rule 12(b)(5) and 12(b)(6) and Alternatively for Summary Judgment. [Rec. Doc. 6–7], as well as a Motion for Sanctions. [Rec. Doc. 21]. The motions were referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636 and the standing orders of this Court. The motions are opposed. Oral argument was heard on the motions to dismiss on May 27, 2014. For the following reasons, it is recommended that the motions to dismiss be granted in part and denied in part and that ruling on the remaining motions be deferred.
Cpl. Dana L. Broussard seeks money damages for claims brought under 42 U.S.C. §§ 1983 and 1988, Title VII, and the First, Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. Additional claims are made pursuant
[45 F.Supp.3d 563]
to Louisiana's equal employment and whistleblower provisions, and other state laws. [Rec. Doc. 1]. Named as defendants are Lafayette City–Parish Consolidated Government; Lafayette Police Department through the Lafayette City–Parish Consolidated Government; Lester Joseph “Joey” Durel, Jr. in his capacity as President of the Lafayette City–Parish Consolidated Government; Dee Edward Stanley, individually and in his capacity as Chief Administrative Officer of the Lafayette City–Parish Consolidated Government; James P. “Jim” Craft, individually and in his capacity as Chief of the Lafayette Police Department; George “Jackie” Alfred, individually and in his capacity as Patrol Division Commander of the Lafayette Police Department; Captain Cornell Montgomery, individually and in his capacity as a Captain in the Lafayette Police Department; Major Terry Head, individually and in his capacity as a Major in the Lafayette Police Department; Lieutenant Richard “Ricky” Rees, individually and in his capacity as a Lieutenant in the Lafayette Police Department; Sergeant Mike Brown, individually and in his capacity as a Sergeant in the Lafayette Police Department; and, Ray Domingue, individually and in his capacity as Human Resources Manager of the Lafayette City–Parish Consolidated Government. [Rec. Doc. 1, pp. 1–9].
Broussard contends that on or about August 27, 2012, she filed a written complaint against Sgt. Mike Brown in which she alleged that Brown had violated the policies of the police department. Broussard gave the report to her superior officer, Capt. Montgomery, who initially rejected the complaint and required that it be submitted on appropriate forms. Broussard complied. Several days later, on or about August 31, 2012, Brown filed his own complaint against Broussard. [Rec. Doc. 1, pp. 10–11]. Both complaints were investigated and made the subjects of separate hearings.
Broussard's complaint against Brown was sustained in November, 2012, and Brown was disciplined as a result. Broussard alleges that she was given a written commendation for raising the issues of Brown's misconduct on or about December 26, 2012. She also received a positive evaluation by Capt. Montgomery the same month. [Rec. Doc. 1, p. 11]. Broussard alleges that two days after receiving the commendation, she appeared for her own pre-disciplinary hearing where Brown's charges against her were also sustained. Broussard was advised she would receive a letter of reprimand, which she did on February 7, 2013. [Rec. Doc. 1, pp. 11–12]. She appealed the reprimand decision. The pleadings do not provide information on the outcome of the appeal.
Broussard alleges that immediately following her action to appeal, her work shift was changed to straight nights, which she considered to be a significant demotion from her daytime shift. [Rec. Doc. 1, p. 12]. Her request to speak to Maj. Terry Head about the issue was denied. Her ‘hardship’ waiver letters were unsuccessful.
Broussard filed a Charge of Discrimination with the Equal Employment Opportunity Commission on March 9, 2013, after which she alleges she continued to be subjected to a hostile work environment, despite her continued complaints about her disparate treatment. She received a right to sue notice from the EEOC on or about July 18, 2013. [Rec. Doc. 1, p. 15].
In general, Broussard contends that her prosecution for misconduct and her transfer and demotion were discriminatory and/or retaliatory acts undertaken in response to her complaint of “contumacious misconduct by Sgt. Brown” and invoking
[45 F.Supp.3d 564]
her appeal rights. [Rec. Doc. 1, pp. 13–14]. She alleges the shift transfer caused her great personal hardship relative to childcare, and it aggravated a health condition which had been in remission prior to the disciplinary events described. [Rec. Doc. 1, pp. 13–14]. She seeks to recover money damages resulting from the acts/omissions of the defendants in violation of state law, as well as the acts/omissions within the scope of the Charge of Discrimination filed with the EEOC and the acts/omissions which violate § 1983. [Rec. Doc. 1, pp. 15–16]. She also seeks to recover punitive damages and costs/attorney fees pursuant to the provisions of 42 U.S.C. § 1988. In response, the defendants filed the instant Motions to Dismiss pursuant to Rule 12(b)(5) and 12(b)(6) and Alternatively for Summary Judgment. [Rec. Docs. 6, 7].1
A motion to dismiss under Rule 12(b)(5) turns on the legal sufficiency of service of process. The defendants have objected to the validity of service on the individual defendants on the basis that it did not comply with the requirements of Fed.R.Civ.P. Rule 4(e). Further, they assert that service was not timely under Rule 4(m), since service was not attempted for 127 days after suit-filing. On the representations by the plaintiff's counsel that appropriate ‘waiver of service’ forms will be submitted as to each defendant except for Richard Rees,2 and on representations by defense counsel that such waivers will be executed on receipt by/for those defendants, the Rule 12(b)(5) motions should be denied as moot.
In support of the Rule 12(b)(6) motion to dismiss, the defendants contend (1) that the plaintiff has failed to state any viable claim against Durel, Stanley, Domingue, Alfred, Head, and Rees; (2) that the plaintiff has not stated a claim under § 1983 for First Amendment violations; (3) that the plaintiff has not stated a claim under § 1983 for Fourth Amendment violations; (4) that the plaintiff has not stated a claim under § 1983 for Fifth Amendment violations; (5) that the plaintiff has not stated a due process claim under the Fourteenth Amendment; (6) that the plaintiff has not stated a claim under Title VII (42 U.S.C. § 2000e) and La. R.S. 23:301 et seq; (7) that the plaintiff has failed to state whistleblower claims under La. R.S. 23:967 and 30:2027; (8) that the plaintiff has not stated a claim under La. Civil Code arts. 2315 and 2317; and (9) that the plaintiff has not stated a claim for punitive damages against the municipal defendant and its officials.
Finally, in a separate Motion for Sanctions [Rec. Doc. 21], the defendants call for the imposition of sanctions against Broussard and her attorneys for the presentation of claims...
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