Swear v. Lawson

288 F.Supp.3d 669

Daniel SWEAR

v.Arthur LAWSON, et al.

CIVIL ACTION NO. 15–6591

United States District Court, E.D. Louisiana.

Signed January 16, 2018

Seth M. Dornier, Dornier Law Firm, LLC, Baton Rouge, LA, Charles Roger Moore, Corey John Hebert, Moore & Hebert, APLC, Baton Rouge, LA, for Daniel Swear.

Steven Michael Mauterer, Wiley J. Beevers, Beevers & Beevers, LLP, Gretna, LA, Colleen Boyle Gannon, Richard A. Weigand, APLC, Donna R. Barrios, Leonard L. Levenson & Associates, New Orleans, LA, for Arthur Lawson, et al.

NANNETTE JOLIVETTE BROWN, UNITED STATES DISTRICT JUDGE

SECTION: "G"(1)

ORDER

In this litigation, Plaintiff Daniel Swear ("Plaintiff"), a former Gretna police officer, asserts claims against Defendants Arthur Lawson ("Lawson"), the Chief of the Gretna Police Department; Scott Vinson ("Vinson"), the Captain of the Patrol Division of the Gretna Police Department; and the City of Gretna (collectively, Defendants). Plaintiff claims that Defendants generally violated his First and Fourteenth Amendment rights by disciplining Plaintiff for failing to comply with the Department's alleged quota system and constructively discharging Plaintiff for speaking out against the alleged quota system. Plaintiff brings claims for violations of his constitutional rights pursuant to 42 U.S.C. § 1983 against the City of Gretna and against Vinson and Lawson in their individual and official capacities. Plaintiff also claims that Defendants violated Louisiana Revised Statute 23:967, which prohibits employer retaliation against whistleblowers, by constructively discharging him for speaking out against the unlawful quota system.¹

Pending before this Court is Defendants' motion for summary judgment, wherein Lawson and Vinson assert that they are entitled to qualified immunity on all claims against them in their individual capacities. Defendants also argue that they are not liable under 42 U.S.C. § 1983 because Plaintiff points to no evidence showing that he was not permitted to freely speak out against the alleged quota system, which they deny exists, or that Defendants in any other way interfered with Plaintiff's ability to speak out against the alleged quota system.² Defendants further argue that no retaliation against Plaintiff took place because Plaintiff resigned by his own free will, as a result of poor job performance.

Having considered the motion, the complaint, the memoranda in support and opposition, oral argument, and the applicable law, the Court will grant the motion, in part, to the extent that Lawson is entitled to qualified immunity; Plaintiff's Section 1983 first amendment retaliation claims against Lawson and Vinson in their official capacities mirror Plaintiff's Section 1983 first amendment retaliation claim against the City of Gretna, so those claims against them are dismissed on that ground; and because Plaintiff has abandoned his 14^th Amendment claim, it is dismissed. Furthermore, the Court will deny the motion, in part, to the extent that Plaintiff has identified disputed issues of material fact as to Vinson's entitlement to qualified immunity, Plaintiff's Section 1983 claim against the City of Gretna, and Plaintiff's Louisiana whistleblower claim, such that determination is not appropriate at the summary judgment stage.

I. Background

A. Factual Background

In connection with their motion for summary judgment, Defendants provide seven statements of "facts not in dispute," upon which they rely in requesting judgment as a matter of law:³

1. Plaintiff, Daniel Swear, was employed by the City of Gretna as a commissioned police officer from December 2010 until he resigned in February 2015.

2. On August 6, 2014, Mr. Swear was placed on a three-day suspension for failing to adhere to Departmental Regulations arising from an incident on July 24, 2014.

3. On or about December 17, 2014, Mr. Swear attended a meeting with one of the four patrol divisions of the Gretna Police Department and Captain Vinson.

4. He was reprimanded for unsatisfactory performance by Sgt. Danielle Rodriguez.

5. On January 27, 2015, during roll call, Mr. Swear presented a colleague with gifts that implied that he would need to perform sexual favors after being passed over for promotion.

6. On February 2, 2015, Mr. Swear executed the Rights Relative to Administrative Proceedings Form and was officially reprimanded for the January 27, 2015 incident.

7. Plaintiff has NO evidence that Chief Lawson had any knowledge of a quota system, violated his Fourteenth or First Amendment Rights and further that he had only met Chief Lawson at a Christmas party.

Plaintiff admits statements 2, 3, and 6.⁴ On October 3, 3017, Plaintiff filed his "Concise Statement of Fact Which Present Genuine Issues."⁵ Defendants do not address the statements contained therein in any subsequent briefings. The parties clearly dispute the nature of the January 27, 2015 disciplinary action against Plaintiff; the circumstances of the meetings on December 2 and December 9 leading to Plaintiff's termination of employment; whether a quota system was mandated by the Gretna Police Department; and whether Plaintiff's supervisors constructively discharged Plaintiff for speaking out against the alleged quota system.

In his Statement of Facts, Plaintiff alleges that on or about December 17, 2014 and/or December 19, 2014, Plaintiff attended a mandatory meeting of the Gretna Police Department, during which Plaintiff was informed that the Gretna Police Department was instituting a quota policy.⁶ According to Plaintiff, the quota system mandated that each Gretna Police Officer issue three traffic citations and/or summons per day and an average of one arrest every two days worked.⁷ Plaintiff alleges that police officers and their supervisors were subject to mandatory disciplinary action for any non-compliance with the quota system.⁸ According to Plaintiff, the quota policy was overseen by Captain Vinson of the Gretna Police Department, and was known by the administration of the department, which would include Chief Arthur Lawson.⁹

Plaintiff avers that on December 20, 2014, he informed his supervisor, Sergeant Danielle Rodriguez, that implementation of the quota policy was expressly prohibited by state law pursuant to Louisiana Revised Statute 40:2401.1, and that he did not intend to participate in unlawful activity.¹⁰ During the conversation on December 20, 2014, Plaintiff avers, Sergeant Rodriguez twice confirmed that the mandatory minimum quota of tickets to be issued by patrol officers was three per day.¹¹

Plaintiff avers that Sergeant Rodriguez would hand out highlighted statistics during roll call, reflecting how many citations and arrests an officer had made in order to show them in what sections they were lacking and needed to improve before the end of the month.¹² Plaintiff avers that Vinson had a dry erase board in his office which listed the names of the patrol division and tracked their compliance with the mandatory quota policy.¹³ Plaintiff further avers that the dry erase board was "in plain view of all people walking by Scott Vinson's office, including Chief Arthur Lawson and Deputy Chief Anthony Christiana."¹⁴ Plaintiff also avers that Officer Paige Broulette was written up following the December 17 and/or 19, 2014 meeting for failing to meet the "policy, practice, and custom for institutionalized quotas."¹⁵

According to Plaintiff, in addition to informing his supervisor, Plaintiff spoke out against the quota system to fellow law enforcement officers of the Gretna Police Department.¹⁶ Plaintiff avers that he also spoke out against the prohibited quota system to members of the public, including but not limited to, friends and family members.¹⁷ Plaintiff also had a license plate made displaying the Louisiana Revised Statute regarding illegal quotas and attached it to his personal vehicle for the public to view.¹⁸ Plaintiff additionally avers that he informed a special agent with the Federal Bureau of Investigation, stationed in the New Orleans office, of the implementation and administration of the quota system.¹⁹ Plaintiff avers that he also notified the Louisiana Attorney General's Office regarding the implementation of the quota system.²⁰

On February 2, 2015, Plaintiff alleges that he attended a meeting in the office of Captain Scott Vinson.²¹ According to Plaintiff, also present in the meeting were Captain Russell Lloyd and two Sergeants.²² At the meeting, Plaintiff alleges that he was threatened with termination if he failed to participate in and meet the assigned quota and was reprimanded for attempting to break the chain of command and speak to Deputy Chief Christiana directly.²³ Plaintiff alleges that Vinson also informed Plaintiff at the meeting that he would be demoted from his position as a Field Training Officer because his outspokenness concerning the illegal quota system could be spread to new officers coming into the department.²⁴ Plaintiff avers that immediately after the February 2, 2015 meeting, he tendered a written letter containing a two week notice of resignation from the Gretna Police Department.²⁵

Plaintiff avers that if he had been fired as opposed to resigning it would have affected his ability to get employment in the future.²⁶

On February 9, 2015, Plaintiff alleges, he attended a second meeting at the request of Captain Scott Vinson; and during the meeting, he was informed that he was being written up for making defamatory statements concerning the ethics of the Gretna Police Department.²⁷ According to Plaintiff, at the February 9, 2015 meeting, he was urged to resign immediately.²⁸ Plaintiff further alleges that while he was still employed by the Gretna Police Department, he was instructed that he needed to remove the license plate from his personal vehicle which referenced Louisiana Revised Statute regarding illegal quotas, and that the directive came from "someone above the rank of captain."²⁹

On January 27, 2015, allegedly as a joke, Plaintiff gave one of his...