ORDER AND REASONS
SARAH S. VANCE, District Judge.
Two sets of defendants move to dismiss plaintiff's amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
I. FACTUAL BACKGROUND
Plaintiff David Maurer is a former employee of the Independence Volunteer Fire Department. After he was terminated from his position as fire chief of the department, he brought section 1983 claims for procedural due process violations and state law claims for violations of Louisiana's "Whistleblower Law" and defamation of character against thirteen defendants.
Plaintiff's complaint alleges the following facts.
A. Plaintiff's Appointment and Early Tenure as Fire Chief
Plaintiff began working as a firefighter for the Independence Fire Department (IFD) in October 2009.
After the municipality made this decision, Dennis Crocker, the fire chief of IFD, became the administrator of TPD2.
Plaintiff's tenure as fire chief was marked by numerous clashes with Crocker. One involved plaintiff's decision, made soon after his appointment, to "change the way fire trucks responded to emergency calls."
On January 20, plaintiff learned that Crocker had been "undermining plaintiff as Fire Chief" in conversations with other firefighters.
Crocker and plaintiff also butted heads when plaintiff discovered in January 2013 that Crocker had failed to pay several of the fire department's bills during the last portion of his tenure as fire chief.
Yet another conflict arose between Crocker and plaintiff over plaintiff's refusal to hire Crocker's son, Andrew, at IVFD.
Finally, Crocker and plaintiff clashed over plaintiff's parttime employment with Hammond Rural Fire Department. In late January, Crocker informed plaintiff that a complaint had been lodged against him.
Plaintiff also encountered conflicts with other town officials that stemmed from a dispute about "compensatory time" that plaintiff believed was owed to several firefighters. In January 2013, after plaintiff had officially assumed his duties as fire chief, he approached Mayor Ragusa about "unpaid compensatory time owed to the firefighters who were formerly employed by the Town of Independence."
In May 2013, plaintiff decided not to invite Ragusa or the Independence Aldermen to IVFD's annual "safety meeting/crawfish boil" because the firefighters were "upset with the Town officials about the compensatory time issue."
B. TPD2's Investigation and Plaintiff's Subsequent Termination
In June 2013, Crocker and Ragusa met in Ragusa's office.
On July 1, 2013, Bruno and Crocker advised plaintiff of Ragusa's letter and told him that TPD2 would investigate Ragusa's allegations.
Crocker allegedly "made negative comments about plaintiff for others to hear" during the time he spent at the station conducting his investigation.
Several days into the investigation, Crocker came to the fire station unannounced and conducted an interview with plaintiff.
Plaintiff alleges that "[o]ther events occurred during Crocker's investigation which indicated that [it] was not being conducted in a fair and impartial manner and that some of the information being provided to Crocker was false."
On July 18, 2013, a TPD2 committee met with Independence officials to discuss the investigation of plaintiff.
On July 25, the IVFD held a board meeting, and after the meeting the Board told plaintiff that he would be placed on administrative leave, with pay, pending the conclusion of the investigation.
Plaintiff complained to Muscarello that he had never had an opportunity to defend himself against Ragusa's allegations before being placed on leave, but Muscarello declined to give plaintiff any details about the ongoing investigation.
According to the complaint, the IVFD Board never produced a written report of the results of the investigation that led to plaintiff's termination.
At that meeting, Speed stated that there was no report from the investigation, and that Ragusa's allegations were not the reason for plaintiff's termination.
Plaintiff also alleges that Parrozzo made negative comments about him after his termination. Specifically, he alleges that Parrozzo "made the statement to others in the community that Parozzo had denied plaintiff's unemployment claim,"
II. PROCEDURAL HISTORY
Plaintiff's original complaint asserted four causes of action based on the foregoing events.
On February 28, 2014, the Court granted two motions to dismiss, one filed by defendants IVFD, Baham, Anthony, Tallo, McKinney, and Parrozzo (the "IVFD defendants"),
The Court dismissed plaintiff's "stigma-plus-infringement" claim against the IVFD Defendants, Ragusa, and Independence, on the grounds that plaintiff had failed to allege the necessary elements of such a claim as to those defendants.
Plaintiff filed an amended complaint on March 18, 2014.
III. LEGAL STANDARD
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 factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 239 (5th Cir. 2009).
A legally sufficient complaint need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. If there are insufficient factual allegations to raise a right to relief above the speculative level, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, the claim must be dismissed. Twombly, 550 U.S. at 555.
A. Procedural Due Process Claim
When confronted with a procedural due process claim, a court must determine, first, whether the plaintiff has a property or liberty interest that cannot be taken away without procedural protections; and second, if so, how much process is due. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541 (1985) ("[O]nce it is determined that the Due Process Clause applies, `the question remains what process is due.'" (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972))). Plaintiff contends that the Due Process Clause applies here for two reasons: first, because he had a property interest in his employment by reason of a state statute, the Louisiana Firefighter Bill of Rights; and second, because he is a classified civil service employee. The Court finds no merit in plaintiff's arguments that he has a property interest in his employment, and therefore holds that plaintiff has failed to show that he was entitled to any procedural protections before his termination.
1. Violation of the Firefighter Bill of Rights
The Louisiana Firefighter Bill of Rights mandates that certain "minimum standards" apply whenever a "fire employee" is under investigation, La. Rev. Stat. § 33:2181(B), and provides that "[a]ny discipline, demotion, dismissal or adverse action of any sort taken against a fire employee without complete compliance with the provisions of [the statute] is an absolute nullity[.]" La. Rev. Stat. § 33:2181(C).
As the Court held in its earlier order granting certain defendants' motions to dismiss, these provisions do not apply to plaintiff because he is not a "fire employee" within the meaning of the statute.
In his amended complaint, plaintiff seeks to remedy this deficiency and bring himself within the statute's definition of a fire employee by alleging that although IVFD was his nominal employer, Tangipahoa Parish, acting "through its special district TFD2," was his de facto employer as a result of the significant degree of control it exercised over the funding and personnel decisions of IVFD. Plaintiff cannot finesse the clear language of the statute in this fashion.
When a federal court interprets a Louisiana statute, it must do so according to the principles of interpretation followed by Louisiana courts. Gen. Elec. Capital Corp. v. Se. Health Care, Inc., 950 F.2d 944, 950 (5th Cir. 1991). In Louisiana, the sources of law are legislation and custom. Shaw Constructors v. ICF Kaiser Eng'rs, Inc., 395 F.3d 533, 546 (5th Cir. 2004). These authoritative or primary sources of law are to be "contrasted with persuasive or secondary sources of law, such as [Louisiana and other civil law] jurisprudence, doctrine, conventional usages, and equity, that may guide the court in reaching a decision in the absence of legislation and custom." Id. (quoting La. Civ. Code art. 1). In Louisiana, "courts must begin every legal analysis by examining primary sources of law: the State's Constitution, codes, and statutes." Id. (quoting Prytania Park Hotel, Ltd. v. General Star Indem. Co., 179 F.3d 169, 174 (5th Cir. 1999)). In addition, in Louisiana, "Laws on the same subject matter must be interpreted in reference to each other." La. Civ. Code art. 13.
If the Louisiana Supreme Court has not ruled on an issue, then this Court must make an "Erie guess" and "determine as best it can" what the Louisiana Supreme Court would decide. Krieser v. Hobbs, 166 F.3d 736, 738 (5th Cir. 1999). To make an "Erie guess" on an issue of Louisiana law, the Court must "employ the appropriate Louisiana methodology" to decide the issue the way that it believes the Supreme Court of Louisiana would decide it. Shaw Constructors, 395 F.3d at 546 (quoting Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 197 (5th Cir. 2003)).
Therefore, the Court begins its analysis with the language of the statute. The Firefighter Bill of Rights provides a precise definition of "fire employee." When, as here, the statute specifically defines the employer-employee relationship, the statute's definition governs. See Dejoie v. Medley, 9 So.3d 826, 829-30 (La. 2009). Allowing an alternative definition, such as plaintiff's proposed de facto employer formula, to compete with the statutory definition would defeat the purpose of privileging the statutory text in the first place.
To meet the statute's definition of a "fire employee," two factors must be met. A person must be (1) "employed in the fire department of [a] municipality, parish, or fire protection district," and (2) the employing municipality, parish or fire protection district must "maintain a full-time regularly paid fire department." La. Rev Stat. 33:2181(A)(1). The first element, importantly, does not refer to employees of private nonprofit corporations. Therefore, under the plain terms of the statute, the Firefighter Bill of Rights does not apply to plaintiff.
The Court's conclusion that the Firefighter Bill of Rights does not apply to plaintiff is buttressed by comparing La. Rev Stat. 33:2181 with La. Rev. Stat. §§ 33:1991 and 33:2002, which are also found in the Part of the Louisiana Revised Statutes entitled "Fire Department." Section 33:1991 contains definitions for the Subpart on minimum wages and maximum hours for firefighters and provides as follows:
La. Rev. Stat. § 33:1991(A)(1) (emphasis added). Thus, the Louisiana legislature specifically included firefighters employed by nonprofit corporations that contract with political subdivisions to provide fire protection services in the definition of "fireman" in section 33:1991, but it did not specifically include such firefighters in the definition of "fire employee" in the Firefighter Bill of Rights.
Similarly, section 33:2002, which governs supplemental pay for employees of fire departments, specifies in four separate places that it applies to
La. Rev. Stat. § 33:2002 (emphasis added). Thus, the supplemental pay statute, unlike La. Rev. Stat. § 33:2181, makes clear that it is intended to apply to nonprofit corporations.
Comparing these two statutes with the text of La. Rev. Stat. 33:2181 demonstrates that the Louisiana legislature specifically included "employees of nonprofit corporations" and "nonprofit corporations" in those statutes that it intended to be applicable to nonprofit corporations. It follows that had the legislature intended for the Firefighter Bill of Rights to be applicable to employees of nonprofit corporations contracting to provide fire protection services, it would have specifically included them in the definition of "fire employee" provided in the statute.
West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83 (1991), is instructive in this regard. There, the Supreme Court held that the term "attorney's fees" in the fee-shifting provision of 42 U.S.C. § 1988 did not include expert witness fees because many other fee-shifting statutes explicitly allowed for shifting of both attorney's fees and expert witness fees. Id. at 88-92. The Court explained that "this statutory usage shows beyond question that attorney's fees and expert fees are distinct items of expense. If . . . the one includes the other, dozens of statutes referring to the two separately becomes an inexplicable exercise in redundancy." Id. at 92. So it is here as well. If a private corporation such as IVFD were considered to be the "fire department of a municipality, parish, or fire protection district" within the meaning of section 33:2181, there would have been no need for the Louisiana legislature to refer separately to "municipal fire departments, parishes or parish fire departments, or fire protection districts," and to "nonprofit corporations under contract with a fire protection district or other political subdivision to provide [fire protection] services" in section 33:1991. Nor would there have been need for it to refer separately to "any municipality, parish, fire protection district, or other political subdivision maintaining a fire department" and "any nonprofit corporation contracting with any such political subdivision to provide fire protection services" in section 33:2002. Cf. Casey, 499 U.S. at 101 (courts should not "treat alike subjects that different Congresses have chosen to treat differently"); Pa. Dep't of Public Welfare v. Davenport, 495 U.S. 552, 562 (1990) (expressing "a deep reluctance to interpret a statutory provision so as to render superfluous other provisions in the same enactment"); La. Civ. Code art. 13 ("Laws on the same subject matter must be interpreted in reference to each other.").
Moreover, in making an Erie guess in the absence of a ruling from the state's highest court, federal courts may look to the decisions of intermediate appellate state courts for guidance. See Howe ex rel. Howe v. Scottsdale Ins. Co., 204 F.3d 624, 627 (5th Cir. 2000) (citing Matheny v. Glen Falls Ins. Co., 152 F.3d 348, 354 (5th Cir. 1998)). Louisiana's intermediate appellate court decisions provide "a datum for ascertaining state law which is not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." Id. (citing Labiche v. Legal Sec. Life Ins. Co., 31 F.3d 350, 351 (5th Cir. 1994)). At present, only the Louisiana Fifth Circuit Court of Appeal has decided the issue of whether employees of non-profit corporations under contract with a fire protection district to provide fire protection services are "fire employees" within the meaning of the Firefighter Bill of Rights. That court held that they were not, employing a similar statutory analysis to the Court here. See Marks v. Third Dist. Volunteer Fire Dep't, 131 So.3d 1099 (La. Ct. App. 2013).
In Marks, the plaintiff was employed by the Third District Volunteer Fire Department, a Louisiana non-profit corporation. 131 So. 3d at 1100. The Third District was under contract with Fire Protection District No. 3 for Jefferson Parish to provide fire protection services for certain areas in the East Bank of Jefferson Parish. Id. The plaintiff alleged that his termination by the Third District was illegal because the Third District failed to comply with the Louisiana Firefighter Bill of Rights. Id.
The trial court ruled that the plaintiff had no cause of action because he was not a "fire employee" within the meaning of the statute as a matter of law. Id. The Louisiana Court of Appeal affirmed. The court held that the plaintiff did not meet the definition of "fire employee" for two reasons. First, unlike the plaintiff here, the plaintiff in Marks did not allege that he was an employee — de facto or otherwise — in the fire department of a political subdivision. Id. Second, the court held that by contracting with a volunteer fire department in order to obtain fire protection services, Fire Protection District No. 3 did not "maintain" a full-time regularly paid fire department. Id. That the Louisiana "legislature specifically referenced `employees of non-profit corporations under contract with a fire protection district' in those statutes that it intended to be applicable to non-profit corporations," but had not mentioned such employees in the Firefighter Bill of Rights, buttressed the Court of Appeal's conclusion. Id. at 1103 (citing La. Rev. Stat. §§ 33:1991, 33:2002). "Had the legislature intended for La. Rev. Stat. § 33:2181 to be applicable to employees of a non-profit organization contracting to provide fire protection services," the court explained, "it would have specifically included those persons in the statute." Id.
Citing principles of Louisiana statutory construction, the Court of Appeal limited its analysis to the language of the statute and decided the issue as a matter of law. See Marks, 131 So. 3d at 1102 (citing La. Civ. Code art. 9) ("When a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature."). It rejected the argument, made by Judge Johnson in dissent, that "whether FPD No. 3 `maintains' a full-time regularly paid fire department w[ould] depend on the language of the contract between FPD No. 3 and the Third District, as well as consideration of how the fire department is organized, funded, and employed." Id. at 1104 (Johnson, J., dissenting).
Applying the same principles of construction here, the Court concludes that the text of La. Rev. Stat. § 33:2181 is clear and unambiguous, and its inapplicability to plaintiff may be determined as a matter of law. In addition to the problems already identified under the first element of La. Rev. Stat. § 33:2181's definition of "fire employee," which requires plaintiff to be "employed" by a "parish, or fire protection district," plaintiff faces similarly insurmountable problems in connection with the definition's second element. The second element specifies that the statute applies only to employees of municipalities, parishes, and fire protection districts "maintaining a full-time regularly paid fire department." Following the logic of the Marks court, the Court rejects plaintiff's suggestion that Tangipahoa Parish, through its special district TFD2, maintains a fire department within the meaning of the Firefighter Bill of Rights "consist[ing] of its Administrator, Dennis Crocker, each nonprofit corporation which contracts with it for the provision of fire protection services, and all paid fire employees assigned to each non-profit corporation."
Finally, even if the Court did look beyond the statutory text and examine plaintiff's de facto employer argument, that argument fails on the facts. The common law test for an employeremployee relationship under Louisiana law "relates to the right of control." Id. In Louisiana, the right to control is evidenced by four primary factors: (1) selection and engagement, (2) payment of wages, (3) power of dismissal, and (4) power of control. See Harrington v. Hebert, 789 So.2d 649, 653 (citing Boswell v. Kurthwood Manor Nursing Home, 647 So.2d 630, 631 (La. Ct. App. 1994)) (worker's compensation); see also Berthelot v. Stallworth, 884 So.2d 648, 654 (La. Ct. App. 2004) (vicarious liability). None of these factors alone is determinative. Harrington, 789 So. 2d at 653. The single most important factor, however, is the fourth factor: the right of the employer to control the work of the employee. See Roberts v. State, Through Louisiana Health & Human Res. Admin., 404 So.2d 1221, 1225 (La. 1981). Plaintiff's support for this critical factor consists primarily of a bare recitation Louisiana's test: he alleges that the Parish, acting through its special district TFD2, "has the right of control and supervision over its employees."
Nevertheless, plaintiff suggests that TPD2's authority over IVFD's finances support a finding of control. Specifically, he alleges that all IVFD expenditures must be "reviewed and approved and processed for payment by TFD2."
2. Civil Service Protection
Plaintiff also contends that he is entitled to the protections of the Louisiana Civil Service system, again relying on his assertion that Tangipahoa Parish was his de facto employer. For the reasons discussed above, this argument fails.
In addition, plaintiff does not qualify for the protections of the Louisiana civil service system as a matter of law. The Louisiana Constitution provides that all municipalities and fire protection districts operating a "regularly paid fire department" must establish a classified civil service system. La. Const. art. 10 § 16. In Heintz v. City of Gretna, the Louisiana Court of Appeal held that this provision does not require volunteer fire departments that contract with municipalities to provide fire protection services to establish a classified civil service system. 683 So. 2d at 928. The court reasoned that "[v]olunteer fire departments "are `operated' by their membership, and not by the municipality . . . and therefore the . . . provisions for civil service are inapplicable." Id. In Marks, discussed above, the court treated Heintz's holding as a purely legal one — that is, as independent of the particular factual circumstances surrounding the relationship among the government entity, the volunteer fire department, and the plaintiff. See Marks, 131 So. 3d at 1102 (stating without qualification that "[i]n Heintz.... [t]his court found that a municipality that contracts with a non-profit corporation to provide fire protection does not operate a `regularly paid fire department'").
Here, plaintiff alleges that he was employed by IVFD — not by TPD2. Thus, under the reasoning of Heintz and Marks, he cannot assert a procedural due process claim based on an entitlement to civil service protection.
B. "Stigma-Plus-Infringement" Claim
Plaintiff does not assert a stigma-plus-infringement claim against Tangipahoa Parish. Accordingly, the Court limits its analysis to the Fire District Defendants.
If a government employee is "discharged in a manner that creates a false and defamatory impression about him and forecloses him from other employment opportunities," the employee has a procedural due process right to "notice and an opportunity to clear his name." Bledsoe v. City of Horn Lake, 449 F.3d 650, 653 (5th Cir. 2006) (quoting White v. Thomas, 660 F.2d 680, 684 (5th Cir. 1981)). A plaintiff alleging a violation of this procedural right must prove seven elements in order to make out a "stigma-plusinfringement" claim:
Id. (citing Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000)).
Even assuming that plaintiff qualifies as a public employee for purposes of this analysis, plaintiff has failed to plead a stigma-plus-infringement claim against the Fire District Defendants. First, plaintiff has not plausibly alleged that any of the Fire District Defendants made "stigmatizing charges" against him in connection with his termination. Plaintiff does allege generally that Crocker "undermin[ed]" him as fire chief,
Second, plaintiff does not allege that the Fire District Defendants denied him a hearing. To the contrary, after plaintiff requested a meeting with TPD2, TPD2's attorney met with plaintiff and his attorney "for a discussion of the situation."
C. Defamation Claim
Plaintiff does not assert a defamation claim against Tangipahoa Parish. Accordingly, the Court limits its analysis to the Fire District Defendants.
None of the comments that the complaint attributes to the Fire District Defendants are capable of defamatory meaning. As the Court explained at length in its earlier order, a plaintiff must "specifically allege" that the defendant made a false and defamatory statement with malice in order to adequately plead a defamation claim under Louisiana law.
Bruno's statement to the IVFD Board members that Ragusa would pull funding from IVFD and dissolve the corporation if plaintiff remained fire chief is a prediction of future events. A prediction cannot be false and therefore cannot be defamatory. See WCP/Fern Exposition Servs., LLC v. Hall, Civil Action No. 3:08-CV-522, 2011 WL 1157699, at *13 (W.D. Ky. Mar. 28, 2011) ("prediction about a possible future event" is not factual and hence cannot be defamatory); Rushman v. City of Milwaukee, 959 F.Supp. 1040, 1044 (E.D. Wis. 1997) (predictions are not defamatory); Bebo v. Delander, 632 N.W.2d 732, 740 (Minn. Ct. App. 2001) ("prediction of a future event" is "not a fact capable of verification" and therefore is not defamatory as a matter of law).
Bruno's statement that plaintiff was approved by TPD2 only as the interim chief is not capable of defamatory meaning. Defamatory words are those "which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule." Costello v. Hardy, 864 So.2d 129, 140 (La. 2004). Plaintiff has not alleged facts plausibly suggesting that Bruno's statement would tend to "prejudice him in the eyes of a substantial and respectable minority" of his community. Restatement (Second) of Torts § 559 cmt. e (1977); see also Fitzgerald v. Tucker, 737 So.2d 706, 716 (La. 1999) (following the Restatement). More specifically, there are no facts in the complaint tending to suggest that anyone in plaintiff's community would think less of him if he were the interim chief rather than the permanent one. Cf. Sassone v. Elder, 626 So.2d 345, 352-53 (La. 1993) (holding that newscaster who asked rhetorical questions insinuating that attorneys had taken advantage of several people had not defamed the attorneys because the questions would not be "reasonably understood to be intended in a defamatory sense so as to harm [the attorneys'] reputations and to lower their community esteem"); Restatement (Second) of Torts § 559 cmt. e illus. 1 (1977) ("A advertises in a newspaper that B, a nurse, uses and recommends to her patients the use of a certain brand of whiskey for medicinal purposes. If a substantial number of respectable persons in the community regard this use of whiskey as discreditable, A has defamed B."); id. illus. 3 ("A, a member of a gang of hoodlums, writes to B, a fellow bandit, that C, a member of the gang, has reformed and is no longer to be trusted with the loot of the gang. A has not defamed B.").
Accordingly, the Court dismisses plaintiff's defamation claims against the Fire District Defendants.
For the foregoing reasons, the Court DENIES all defendants' motions to plaintiff's Due Process claims, and GRANTS Fire District Defendants' motion to dismiss plaintiff's stigma-plusinfringement and defamation claims. Plaintiff's claims for stigma-plus-infringement and defamation against the Fire District Defendants are dismissed.