Moreau v. St. Landry Parish Fire Dist. No. 3

Moreau v. St. Landry Parish Fire District No. 3

Case No. 6:18-cv-00532

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA LAFAYETTE DIVISION

August 8, 2018

Judge Terry A. Doughty

Magistrate Judge Carol B. Whitehurst

REPORT AND RECOMMENDATION

Before the Court, upon referral from the district judge, is a Motion To Dismiss filed by Defendant St. Landry Parish Fire District No. 3 ("District 3") [Rec. Doc. 4], Plaintiff, Joseph Larry Moreau, Jr.'s Opposition Memorandum [Rec. Doc. 12] and District 3's Reply thereto [Rec. Doc. 14]. For the reasons that follow, the Court recommends that the motion be denied.

I. BACKGROUND

District 3 is a fire protection district which is a political subdivision of the State of Louisiana. R. 1, ¶1. It is governed by a Board of Commissioners ("BOC"). See, La. R.S. 40:1495 and 1499. Moreau was employed by District 3 as a Fire Captain until March 20, 2018 at which time the BOC terminated him. Id. at ¶ 5.

On or about January 8, 2018, the Vermilion Parish School Board ("school board") held a public meeting. At that meeting, the school board had one of its teachers escorted out of the meeting by a law enforcement officer. The teacher and law enforcement officer exited the meeting room and entered the hallway outside of the meeting room. The officer then handcuffed the teacher and took her to jail. Id. at ¶¶ 6-8.

One of Moreau's friends created a post on Facebook relating to this incident involving the Vermilion Parish School Board. Moreau responded to that post by making the following comment on Facebook:

[A]ll of this going on with this poor teacher being treated so unfairly makes one thing perfectly clear... These "boards" everywhere, ruled by good old boy politics need to be dissolved ASAP..!! We have the same exact problem at our fire department... A board of clueless idiots making the decisions that affect many including the very employees that actually do the job.. It's a joke.. [...]. I hope this teacher makes them pay...and pay big time!!

Id. at ¶¶ 11-12.

District 3 subsequently opened a disciplinary investigation into whether this comment violated District 3's social media policy and state civil service laws. After conducting a pre-disciplinary conference, the BOC voted to terminate Moreau. The reasons for Moreau's termination were memorialized in a March 21, 2018 "Interoffice Memorandum" from the BOC to Moreau. Those reasons included violations of several provisions of District 3's social media policy and Louisiana Civil Service Law, Id. at ¶¶ 13-14; R. 1-1, Exh. A:

Our investigation has provided information to support the following:

On or about January 12, 2018 you responded to a post on Facebook in which you included disparaging remarksabout the St. Landry Parish Fire District No. 3 Board of Commissioners.

This is a violation of our departmental policies which state the following:

Social Media will be used in a positive and professional manner that will not bring discredit to the Department, its members or the public.

2.2 Personnel are free to identify themselves as private citizens. Personnel may post, with approval from the Fire Chief or his/her designee, material that references employment by St. Landry FD #3 employees to social media sites to the degree that his or her speech does not: 2.2.4 Negatively affect the public perception of the Department.

3.1 Publishing or posting false information that harms the reputation of another person, group, or organization (defamation).

5.2 Speech involving himself of herself or other Department personnel reflecting behavior that would be considered reckless or irresponsible.

Your actions will result in disciplinary action for the reason(s) identified below from Louisiana Revised Statute 33:2500:

(3) The commission or omission of any act to the prejudice of the departmental service or contrary to the public interest or policy.

(5) Conduct of a discourteous or wantonly offensive nature toward the public, any municipal officer or employee; and, any dishonest, disgraceful, or immoral conduct.

(14) The willful violation of any provision of this Part or of any rule, regulation, or order hereunder.

Moreau did not appeal his termination to District 3's civil service board under La. R.S. 33:2561. Instead, he commenced these §1983 proceedings.

Moreau filed this action under 42 U.S.C. § 1983, alleging violation of his civil rights in that: (1) District 3fired him in retaliation for engaging in speech protected by the First Amendment and Article I, § 7 of the Louisiana Constitution, R. 1, ¶¶ 16-30; (2) District 3's social media policy is vague and therefore unconstitutional on its face Id. at ¶¶ 31-34; and (3) District 3's social media policy is invalid as applied, Id. at ¶¶ 55-71. Moreau amended his complaint naming as additional defendants the Board of Commissioners of St. Landry Parish Fire Protection District No. 3 ("BOC") and the individual BOC, Wilfred Kinnerson, Donald Robinson, Greg Doucet, Terri Courvelle, Frank Guidroz, Ryan Chachere, and Pamela Jackson. R. 6. Moreau requests damages and attorney's fees under 42 U.S.C. § 1988 against all defendants. Defendant, District 3, filed this Motion To Dismiss all of Plaintiff's claims.

II. CONTENTIONS OF THE PARTIES

First, Defendant contends that Plaintiff's comment did not involve a matter of "public concern." Specifically, it argues that when Plaintiff's posts are considered under the factors set out in Connick v. Myers, 461 U.S. 138, 143 (1983), context, form and content, they all weigh against a finding of public concern. Defendant also contends that even assuming that Plaintiff's comments were of some public concern,the concern is outweighed by District 3's interest in promoting efficiency because, as a fire department, District 3 has a heightened need for order, loyalty and harmony. Next, Defendant argues that District 3's social media policy is not overbroad as applied because Moreau's speech at issue is not protected by the First Amendment. Finally, Defendant argues that District 3's social media policy is not vague or overbroad in that it allows the posting of matters of public concern as long as the speech does not reference employment by St. Landry Fire District 3.

In his opposition, Moreau contends that his speech at issue was as a private citizen, not as Defendant's employee, about a matter of widespread public interest unrelated to his employment, as allowed under District 3's social media policy, and should therefore be protected under the First Amendment. He further contends that his speech related to a matter of public concern as to content (his criticism of public officials), form (he spoke on Facebook to a friend with no connection to his employer), and content (the widespread discussion of a First Amendment retaliation by a public board against a person who spoke on a matter of public concern). He submits that none of these were aimed at District 3 or the BOC. Finally, he contends that while District 3 contends the social media policy allows a person to "speak freely on matters of public concern," because it seeks to prohibit information that would reflect unfavorably upon District 3, it is vague, overbroad and unconstitutional on its face.

III. LEGAL STANDARD

Under the Federal Rules of Civil Procedure, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). The complaint must "give the defendant fair notice of what the claim is and the grounds upon which it rests." Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346 (2005). The allegations "must be simple, concise, and direct." Fed. R. Civ. P. 8(d)(1).

"Under Rule 12(b)(6), a claim may be dismissed when a plaintiff fails to allege any set of facts in support of his claim which would entitle him to relief." Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (citing McConathy v. Dr. Pepper/Seven Up Corp., 131 F.3d 558, 561 (5th Cir. 1998)). To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead enough facts to "state a claim to relief that is plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. The court, drawing on its judicial experience and common sense, must undertake the "context-specific task" of determining whether the plaintiff's allegations "nudge" its claims "across the line from conceivable to plausible." See Iqbal at 679, 683. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favorof the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009); Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). The court is not, however, bound to accept as true legal conclusions couched as factual allegations. Iqbal, 556 U.S. at 678. "[C]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." Taylor, 296 F.3d at 378.

IV. DISCUSSION

A. Plaintiff's First Amendment Freedom of Speech Retaliation Claim

To succeed on his First Amendment freedom of speech retaliation claim, Plaintiff must show that "(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 service; and (4) the speech precipitated the adverse employment action." Rodriguez v. City of Corpus Christi, 2017 WL 1476877, at *2 (5th Cir. 2017) (quoting Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015)). As there is no question that Plaintiff suffered an adverse decision in that his employment was terminated, Defendant argues that under element two Plaintiff did not speak on a matter of public concern, and under element three the concern expressed...