Moore v. Smith

BRYAN MOORE, ET AL. v. RANDY SMITH

CIVIL ACTION No. 17-5219 SECTION: "J" (2)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA

July 31, 2020

ORDER & REASONS

Before the Court are a Motion for Summary Judgment (Rec. Doc. 197) filed by Defendant Randy Smith, an opposition thereto (Rec. Doc. 214) filed by Plaintiffs Sean Beavers, James Franklin, Cheryl Hanson, Sterling Hebert Jr., Robert Juge Jr., and Bryan Moore, and a reply (Rec. Doc. 233) by Defendant. Having considered the motion and memoranda, the record, and the applicable law, the Court finds that the motion should be GRANTED in part and DENIED in part.

FACTS AND PROCEDURAL BACKGROUND

This matter arises from the 2015 St. Tammany Parish Sheriff's election in which Defendant, Sheriff Randy Smith, challenged the then-incumbent sheriff, Rodney "Jack" Strain. Plaintiffs¹ served as deputy sheriffs under Sheriff Strain and campaigned on his behalf during the election. Specifically, Plaintiffs allege that they solicited votes door-to-door, wore campaign apparel, distributed yard signs, and attended public fundraisers and events in support of Sheriff Strain. Despite theirvigorous campaign efforts, Defendant won the election on November 21, 2015. Upon assuming office, Defendant did not reinstate Plaintiffs to their former positions as deputy sheriffs, which Plaintiffs allege to be an act of retaliation because Defendant resented their support of his political opponent.

On May 25, 2017, Plaintiffs filed suit against Sheriff Smith, individually and in his official capacity, asserting claims for First Amendment retaliation and violations of Louisiana Revised Statute 23:961. Plaintiffs Bryan Moore and Cheryl Hanson also bring claims under the Family and Medical Leave Act ("FMLA"). The Court granted Defendant's motion to dismiss only as to the state law claims.² Defendant now seeks summary judgment on the remaining claims.

LEGAL STANDARD

Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56); Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). When assessing whether a dispute as to any material fact exists, a court considers "all of the evidence in the record but refrains from making credibility determinations or weighing the evidence." Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008). All reasonable inferences are drawn in favor of the nonmoving party, but a party cannot defeat summary judgment with conclusory allegations orunsubstantiated assertions. Little, 37 F.3d at 1075. A court ultimately must be satisfied that "a reasonable jury could not return a verdict for the nonmoving party." Delta, 530 F.3d at 399.

If the dispositive issue is one on which the moving party will bear the burden of proof at trial, the moving party "must come forward with evidence which would 'entitle it to a directed verdict if the evidence went uncontroverted at trial.'" Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1264-65 (5th Cir. 1991). The nonmoving party can then defeat the motion by either countering with sufficient evidence of its own, or "showing that the moving party's evidence is so sheer that it may not persuade the reasonable fact-finder to return a verdict in favor of the moving party." Id. at 1265.

If the dispositive issue is one for which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record is insufficient with respect to an essential element of the nonmoving party's claim. Celotex, 477 U.S. at 325. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. Id. at 324. The nonmovant may not rest upon the pleadings but must identify specific facts that establish a genuine issue for trial. Id. at 325; Little, 37 F.3d at 1075.

DISCUSSION

I. FIRST AMENDMENT RETALIATION

Plaintiffs bring claims under 42 U.S.C. § 1983 for First Amendment retaliation, which require them to show: (1) they suffered an adverse employment decision; (2) their speech involved a matter of public concern; (3) their interest in speaking outweighed Defendant's interest in promoting efficiency; and (4) the protected speech motivated Defendant's conduct. Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016). Plaintiffs must show that their protected speech was a "substantial" or "motivating factor" in the adverse employment decisions. Brady v. Ft. Bend Cty., 145 F.3d 691, 711 (5th Cir. 1998) (quoting Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).³ The parties agree that only the fourth element, causation, is at issue.

Even if Plaintiffs establish that their protected speech was a substantial or motivating factor in Defendant's decisions to terminate them, Defendant may still avoid liability by showing "by a preponderance of the evidence that [he] would have made the same decision . . . even in the absence of the protected conduct." Mt. Healthy, 429 U.S. at 287; see also Beattie v. Madison Cty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001). Defendant must do more than articulate legitimate, nonretaliatory reasons for Plaintiffs' terminations; he must "prov[e] that [he] would have taken the same adverse action even in the absence of the improper consideration." Brady, 145 F.3d at 712. The Fifth Circuit has characterized this burden as an "affirmativedefense." Id. Thus, "summary disposition of the causation issue in First Amendment retaliation claims is generally inappropriate." Haverda v. Hays County, 723 F.3d 586, 595 (5th Cir. 2013). But see Beattie, 254 F.3d at 601 (affirming summary judgment where plaintiff failed to meet "her initial burden of demonstrating that her speech motivated her discharge").

In considering Defendant's motion to dismiss, the Court concluded that the temporal proximity between Plaintiffs' support for former Sheriff Strain and Defendant's decisions to not recommission them upon taking office, as well as their lengthy and prestigious service, supported an inference that Defendant terminated them because of their political activity.⁴ See Porter v. Valdez, 424 F. App'x 382, 387 (5th Cir. 2011) (per curiam). Defendant now argues that legitimate, nonretaliatory reasons motivated his decisions to not recommission Plaintiffs, while Plaintiffs contend that the proffered reasons are post-hoc justifications. The Court considers each in turn.

A. Robert Juge

Defendant contends that his decision to not recommission Juge was based on Juge "sending offensive, racially charged, and sexist emails to his coworkers" over two years prior to Defendant taking office and for which Juge was not reprimanded.⁵ In support, Defendant offers his own affidavit, a Times Picayune newspaper articledescribing the incident, copies of the emails, and Juge's deposition testimony admitting that he had sent the emails and that no action was taken against him because of his conduct.⁶

In response, Plaintiffs offer the affidavits of four individuals who declare that, before he took office, Defendant told them he was going to fire certain employees due to their political support for former Sheriff Strain. Calvin Lewis, a former STPSO employee, stated that Defendant told him on January 11, 2016, two months after the election and six months before Defendant took office, that he was going to fire Juge, as well as Beavers, Hebert, and Moore, because of their support for former Sheriff Strain.⁷ Lewis further declared that Defendant "never mentioned" he was firing them for the reasons he now offers.⁸ Likewise, Fred Oswald, a former STPSO employee who acted as liaison for the transition between former Sheriff Strain and Defendant, declared: "I recall Randy Smith being very passionate when discussing Bobby Juge's termination and he mentioned numerous times the amount of money and support that Bobby Juge obtained for former Sheriff Strain in Slidell during the campaign."⁹ Oswald further declared that he could not recall any of Defendant's proffered reasons for not recommissioning Plaintiffs being discussed in any of the meetings he attended during the transition.¹⁰ Mike Moore and Craig Young, two local business owners whoknow Defendant personally, make similar declarations in their affidavits regarding only Juge.¹¹

Plaintiffs also point to the campaign rally in support of former Sheriff Strain during which Defendant approached Juge, Hebert, and Franklin, pointed his finger at each, and said, "You're fired." To corroborate their testimony, Plaintiffs offer the affidavits of Jerry P. Miller, a former STPSO employee, and Pam Franklin, the wife of Plaintiff Franklin, who were at the rally and witnessed the encounter.¹² Additionally, Lewis stated in his affidavit that Defendant called him after the event and described threatening to fire Juge, Hebert, and Franklin.¹³

Defendant argues that the declarations of Lewis and Oswald are "inherently untrustworthy" because they are "both disgruntled former employees of STPSO who have each filed separate lawsuits against" him.¹⁴ But this is exactly the type of credibility determination that the Court must refrain from making in deciding a motion for summary judgment. See Delta, 530 F.3d at 398. Defendant also fails to address the declarations of Mike Moore, Craig Young, Jerry Miller, or Pam Franklin. While Defendant further contends that the fact that he retained several other employees who supported former Sheriff Strain means that Plaintiffs cannot establish causation, it at most creates a triable issue of fact for the jury, particularly in light of evidence that Defendant acknowledged he could not fire all of formerSheriff Strain's...