J. Kast v. The Greater New Orleans Expressway Comm'n, Civil Action No. 09-4575.
| Decision Date | 13 September 2010 |
| Docket Number | Civil Action No. 09-4575. |
| Citation | 719 F.Supp.2d 662 |
| Parties | Michael J. KAST v. The GREATER NEW ORLEANS EXPRESSWAY COMMISSION, Robert J. Lambert and Frank Levy. |
| Court | U.S. District Court — Eastern District of Louisiana |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Robert T. Garrity, Jr., Robert T. Garrity, Jr., APLC, Richard Edgar Anderson, Richard E. Anderson, Attorney at Law, Harahan, LA, for Plaintiff.
Guice Anthony Giambrone, III, Craig R. Watson, Blue Williams, LLP, Metairie, LA, for Defendant.
ORDER AND REASONS
Before the Court is the motion to dismiss of defendants the Greater New Orleans Expressway Commission (“GNOEC”), Robert Lambert, and Frank Levy. 1 For the following reasons, the Court GRANTS defendants' motion.
This action concerns the firing of Plaintiff Michael J. Kast for his purported role in handling the high profile traffic stop of Mandeville, Louisiana Mayor Eddie Price. At the time of the incident, Kast was employed by GNOEC as a Lieutenant and Operations Supervisor for the Causeway Police Department (“CPD”), the enforcement division of the GNOEC. 2
A. FACTUAL HISTORY 1. The Causeway Incident
On April 22, 2008, shortly before midnight, Price approached a tollbooth on the north shore side of the Lake Pontchartrain Causeway. 3 The tollbooth lane was closed. The gate was down. Flashing lights indicated the tollbooth's closure. 4 Price bumped the gate twice with his car, revved his engine, and barreled through the wooden arm of the tollbooth, damaging it in the process. 5 After breaking through the wooden tollbooth arm, Price stopped his car. 6 The tollbooth operator instructed Price to stay where he was because she had called the police. 7 Rather than remaining still, however, Price started his car and drove down the Causeway towards New Orleans with his lights off. 8 The tollbooth operator took down Price's license plate number and called the CPD officers on duty. 9
CPD officers Dupont and Dorsett responded to the tollbooth operator's call and pulled Price over shortly after midnight. 10 Dupont and Dorsett allegedly recognized Price, and Price admitted to the two officers that he had been drinking. 11 Nevertheless, Dupont and Dorsett did not administer a standard field sobriety test to determine Price's level of intoxication. 12 Instead, Dupont phoned Kast, his immediate supervisor, who was off-duty at the time. 13 Dupont informed Kast that he had made a traffic stop, the suspect was Mayor Price, and Price had been drinking, though he did not appear “impaired.” 14 Dupont asked Kast what to do, and Kast responded that it was Dupont's decision because Dupont was the officer who had made the traffic stop and personally observed Price's mannerisms. 15 Kast also instructed Dupont to call Chief Lociano and inform him of the situation. 16 Dupont then called Chief Lociano. 17 Chief Lociano gave Dupont the same instructions given by Kast, i.e., to determine for himself what action to take with Price. 18 Ultimately, Dupont and Dorsett chose to let Price go without a citation or warning, and without having administered a field sobriety test. 19
2. CPD Internal Investigation
On May 5, 2008, Conrad H. Franz, a CPD officer, initiated an internal investigation into the April 22 traffic stop of Mayor Price. 20 Franz's investigation involved the collection of evidence and taking of witness statements. 21 Pertinent here, Franz took two separate statements from Kast. 22 In the first statement, Kast allegedly told Franz that he would follow the law and not participate in any CPD “cover-up” of the Price traffic stop. 23 Kast does not allege, however, that Franz or any other CPD officer asked him to participate in a cover-up. 24 In the second statement, Kast clarified that Dupont had notified him of the Price traffic stop, which was consistent with the requirements of a standing order issued by Chief Lociano. 25 According to Kast, the standing order required an officer who arrested a politician or “otherwise connected” individual to notify Kast and Chief Lociano of the incident because of the potential publicity associated with the arrest. 26
At the conclusion of the CPD internal investigation, Franz prepared a 14-page report. 27 The report concluded that Dupont and Dorsett should have given Price a field sobriety test before releasing him to determine if Price was driving while impaired. 28 As a result of the report's recommendations, the CPD issued a citation to Mayor Price on June 24, 2008 for careless operation of a motor vehicle. 29 The CPD also took disciplinary action against both Dorsett and Dupont. 30
3. GNOEC Investigation
Defendant GNOEC also conducted its own independent investigation into the Mayor Price incident. 31 The purpose of this second investigation was both to determine whether Dupont and Dorsett handled the situation appropriately and to respond to “anonymous allegations of a police cover-up.” 32 The GNOEC appointed a four member panel to perform the investigation. 33 The panel consisted of two outside attorneys, a retired Drug Enforcement Administration agent, and defendant Frank Levy, the Vice Chairman of the GNOEC. 34 During the course of its investigation, the panel reviewed the CPD internal investigation reports, interviewed GNOEC personnel, and reviewed state and local law relevant to the Price traffic stop. 35 One panel member, William Reinhardt, contacted Kast and conducted a short telephone interview with him. During the interview, Kast “reiterated that he intended to follow Louisiana law and CPD policies and procedures, and would not participate in ‘cover-ups' or granting certain citizens-including Mayor Price-preferential treatment based on who they were or who they knew.” 36
On July 1, 2008, the GNOEC independent panel issued a 28-page report detailing its findings of facts and conclusions. 37 The report found that Kast abdicated his responsibilities under CPD Regulation 17-3 by instructing Dupont to call Chief Lociano instead of either giving Dupont a direct order instructing him how to handle the situation or personally responding to the scene once Dupont called him. 38 The Report concluded that Kast should be terminated because his actions were “clearly contrary to departmental policy, rules and regulations.” 39 On July 1, 2008, defendant Robert Lambert, the General Manager of the GNOEC, asked Kast to resign from the CPD. 40 After Kast refused, Lambert fired him. 41
B. PROCEDURAL HISTORY
Kast sued defendants on July 2, 2009, alleging that defendants retaliated against him in violation of his right to free speech under the First Amendment and in violation of the Louisiana Whistleblower statute. 42 Specifically, Kast contends that he was fired because he complained to Reinhardt about the panel's interpretation of CPD Regulation 17-3 and what actions it required Kast to take during Price's traffic stop. 43 Defendants removed the case to this Court under 28 U.S.C. § 1441 on the basis of Kast's federal claims. 44
On September 9, 2009, defendants filed a motion to dismiss Kast's suit under Rule 12(b)(6), or alternatively a motion for summary judgment under Rule 56. 45 Instead of responding to the defendants' motion, Kast asked the Court for leave to amend his complaint. 46 The Court granted Kast's request on January 14, 2010. 47 Kast's amended complaint adds factual allegations about the preferential treatment defendants gave to politically connected individuals during and after traffic stops and arrests. 48 Kast's amended complaint also alleges that he was fired, in part, for continually voicing his opposition to Lambert's preferential treatment of politically connected individuals to Lociano, Lambert, and “others.” 49
Defendants now re-urge their motion, with attached exhibits, styled “Motion to Dismiss Case for Failure to State a Claim upon which Relief Can Be Granted, and Rule 56 Motion for Summary Judgment.” 50 Defendants acknowledge that the Court may convert the Motion into a Rule 56 motion for summary judgment if it examines matters outside the pleadings. 51 The Court must determine whether it will entertain the motion under the standard appropriate to motions to dismiss, or that appropriate to motions for summary judgment.
Defendants have attached exhibits to their motion, and Kast attached affidavits to his opposition. 52 Some of this material is duplicative of the pleadings that the Court may legitimately consider when adjudicating a motion to dismiss. 53 Other material, such as third-party affidavits and CPD regulations that were not attached to Kast's complaint or amended complaint, cannot be considered by the Court without transforming the motion into a motion for summary judgment. Federal Rule of Civil Procedure 12(d) indicates that “[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion” before the Court may transform a motion to dismiss into a motion for summary judgment. 54 Although Kast recites the motion-to-dismiss standard in his opposition to defendants' motion, he also recites the summary judgment standard and presents material outside the pleadings. Furthermore, Kast has made no argument that the Court should decline to consider materials outside the pleadings 55 , or that it should not construe the motion as one for summary judgment.
Kast twice states that defendants seek to dismiss “before any discovery has been taken.” (R. Doc. 44.) This argument implicates Rule 56(f), which states that if:
a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or (3) issue any other just order. 56
Here, Kast responded to defendants' motion with his own summary...
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...[her employer] of her concerns supports her contention that the speech is public.”); Kast v. Greater New Orleans Expressway Comm'n, 719 F.Supp.2d 662, 675 (E.D. La. 2010) (“[T]he Fifth Circuit has held that speech made outside the work-setting to reporters or elected officials is of public ......