Christopher J. Gurba VS State of Louisiana, Department of Transportation and Development, John Bradberry, Alan Levasseur, Michael Helmstetter and Terry Rutherford
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2008 CA 0998 CHRISTOPHER J GURBA VS STATE OF LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT JOHN BRADBERRY ALAN LEVASSEUR MICHAEL HELMSTETTER TERRY RUTHERFORD JUDGMENT RENDERED DEe 2 3 2008 ON APPEAL FROM THE Wl NINETEENTH JUDICIAL DISTRICT COURT DOCKET NUMBER 544 361 DIVISION M SECTION 26 PARISH OF EAST BATON ROUGE STATE OF LOUISIANA THE HONORABLE KAY BATES JUDGE John B Wells Sr Slidell Floyd Attorney for Plaintiff Appellant Christopher J Gurba Louisiana J Falcon Jf Attorneys for Defendant Daniel L Avant Appellee Baton Mark Falcon Rouge Louisiana Andrew Blanchfield Baton Attorney for Defendants Appellees State of Louisiana Department of Transportation and Development John Bradberry Alan Rouge Louisiana Levasseur Michael Helmstetter Terry Rutherford BEFORE PETTIGREW McDONALD AND HUGHES JJ 8 elf Yc JI t fW 9 vVlr and McDONALD J This is the appeal from objection of no officer was an at cause the Crescent a judgment granting of action Christopher Plaintiff grievances recalled active to 29 405 A I to so he voiced duty with the United States Air public or Force Mr Gurba continued to receive Some time thereafter the payments ceased repayment claiming it had overpaid Mr Gurba to Mr Gurba to continue a was KS to pay the in payments from the CCCPD and the CCCPD demanded On October 2 the State of 2005 DOTD through Twenty Fourth Judicial District filed suit in the attorney Mark Falcon Mr Gurba perform service Department of Transportation and Development Louisiana police Pursuant to La private employers employees who left employment uniformed services was a complaints and filed Thereafter under the administrative code which authorizes any compensation 1 Gurba City Connection Police Department CCCPD unhappy with the management of CCCPD number of peremptory exception raising a Court On March 21 2006 against Mr Gurba seeking reimbursement for overpayments the State DOTD dismissed the suit On June 16 Court 2006 asserting that Executive DOTD Director Helmstetter of the John Chief of the CCCPD difference between his alternative Bradberry DOTD Secretary Alan Crescent owed him wages and CCCPD meetings Mr Gurba filed suit in the Nineteenth Judicial District and military base pay and his state base pay training recertification 2 statutes in the owed him the and also in the court department officials agents and representatives damages for violation of the employee reprisal prohibition Michael Lieutenant Terry Rutherford damages and in the alternative pay for hours spent in with City Connection Division Levasseur and business He also sought specifically La 23 967 A KS malicious and La R S 42 1169 A 2 and for abuse of process intentional infliction of emotional distress prosecution By amended petition attorney fees B and Mr Gurba added Mr Falcon negligence and as a defendant in the suit Mr Falcon filed peremptory exception raising the objection of no asserting that the petition failed action constituted an An shall not take employer allege facts that if accepted prosecution and further Mr Falcon by Louisiana Revised Statute 23 967 A to abuse of process malicious emotional distress I a or of cause as true intentional infliction of asserting that the petition failed to provides reprisal against an employee who in good faith and after advising the employer of the violation of law 1 2 Discloses or threatens to disclose Provides information to or workplace act or practice that is in violation of state law public body conducting an investigation hearing a testifies before any or inquiry into any violation of law 3 B Objects An to employee refuses to or In participate an employment act or practice that is in violation of law may commence a civil action in a district court where the violation occurred against any employer provisions of Subsection who engages In a practice prohibited by Subsection A ofthis Section If the court finds the A of this Section have been violated the plaintiff may recover from the employer damages reasonable attorney fees and court costs C For the purposes of this Section the following terms shall have the definitions ascribed below firing layoff loss of benefits or any discriminatory action the court finds was taken as a result of an action by the employee that Is protected under Subsection A of this Section however nothing in this Section shall prohibit an employer from enforcing an established employment policy procedure or practice or exempt an employee from compliance with such 2 Damages include compensatory damages back pay benefits reinstatement reasonable attorney fees and court costs resulting from the reprisal D If suit or complaint is brought in bad faith or if it should be determined by a court that the employer s act or practice was not in violation of the law the employer may be entitled to reasonable attorney fees and court costs I Reprisal includes trom the employee 2 Louisiana Revised Statute 42 1169 A Any public employee who reports which he to a believes indicates reasonably accordance with in provides law pertinent part person or entity of competent authority or jurisdiction information violation of any law or of any order rule or regulation issued in a any other alleged acts of Impropriety related to the scope or duties of public office within any branch of state government or any political subdivision shall be free public reprisal or threats of discipline or reprisal by the public employer for reporting such acts of employment or from discipline alleged impropriety head nor employee B I or No because ofthe employee authority to hire fire or discipline employees supervisor agency to reprisal or threaten to subject to reprisal any such public efforts to disclose such acts of alleged impropriety s subject is suspended demoted dismissed or threatened with such suspension demotion or reprisal for reporting an alleged act of impropriety in violation of this Section such lfallY public employee act of dismissal as employee shall report such action 2 with employee any elected official shall an to the board An employee who is wrongfully suspended demoted or dismissed shall be entitled to reinstatement of his employment and entitled to receive any lost income and benefits for the period of any suspension demotion or dismissal 3 identify describe Mr Falcon or by Falcon that minimized Mr grievances and the petition failed that Mr Falcon acted Mr Falcon a amend his cause petition dismissed with to state between Mr relationship petition failed to describe denied Mr Gurba or facts in support of the legal conclusion for overpayments court granted the peremptory exception raising of action and further ordered that Mf Gurba had 30 in default thereof all claims or Mr Gurba filed prejudice a against Mr second amended action hearing the trial court Mr Falcon with Gurba s suit against granted the to Mr no cause exception and dismissed Mr Gurba is prejudice days petition and exception raising the objection of a the Falcon would be Falcon filed another peremptory After alleged s the petition be dismissed with prejudice hearing the trial objection of no the or improperly in demanding reimbursement prayed that After status Further Mr Falcon asserted that the Falcon and DOTD actions taken legal s of Mr appealing that judgment The peremptory exception pleading the objection of no legal sufficiency of the petition procedural device used to test determination all well pleaded facts in the petition no reference court must factual can be made the to extraneous supportive 797 La must or be allegations of the petition are proven of action has been stated App must Dietrich v at of action is In accepted making as true controverting evidence then determine whether the law affords any relief concerning the sufficiency of the petition a cause cause trial Any to plaintiff Elec the and The if the reasonable doubt be resolved in favor of Apex a finding that 632 So 2d 795 796 1 Cir 1993 Mr Gurba s brief that he does second and third first not cause have causes of action is for wages due however a cause of action of action for wages are for violation of the 4 against he admits in Mr Falcon The public employee reprisal protection Specifically nor such acts of facts an subject agent and of his employee an in order to sustain them the an Mr threaten to efforts s Gurba subject to disclose to asserts however there that Mr are no Mr Gurba would have further a cause defendant proceeding 3 for such cause be inferred in a 1 proceeding against plaintiff who Damage conforming rights of satisfied was cases party evincing Onwukwe should employ 1979 There wanton and reckless are no facts v proceeding legal to standards where there is utter never been favored and 5 a Johnson malicious The 2 Its Co in the of the rights 5 original present plaintiff 4 The The presence of malice therein to plaintiff The malice wanton and reckless disregard of resulting 380 So 2d 148 of Mr Gurba inquiry 150 La given to show that Mr Falcon acted with disregard or legal causation by absence of that caution and Kroger v prosecution commencement defendant Its bona fide termination in favor of the absence of probable can in prevail It has prosecution be established To civil or for malicious of this sort have be must are must case criminal original the present element or agency showing of an employee employer employer 1975 La following elements continuance of the clear a 816 313 So 2d 812 6 no of action causes repeatedly been maintained that Actions and reprisal relationship and explain why The fourth and fifth case to Gurba and Mr Falcon Mr part that No against Mr Falcon of action Pearce states in which B and discipline employees supervisor or There is alleged impropriety establish the to 42 1169 A RS public employee because of the employee relationship between Falcon is hire fire to any elected official shall any such reprisal La and Mr Gurba refers to La R S 42 1169 A employee with authority head 23 967 A R S La statutes App malice a man 1 Cir or with The sixth cause of action is for intentional infliction of emotional distress for Intentional infliction of emotional distress filing the lawsuit viable La cause of action in White One who 1991 by emotional distress severe to recover establish another is to to subject for intentional infliction of emotional distress was extreme the emotional distress suffered by the plaintiff defendant desired emotional distress to inflict severe distress would be certain Richardson So 2d 544 Home v so a civilized oppressions must USA 2000 0393 p 4 Depot a causes 2 that 3 that the severe emotional and knew that In must plaintiff and outrageous severe La 1209 bodily harm certain to result from substantially court in White Monsanto v outrageous in character and possible bounds in or a his conduct I Cir 3 28 01 App 808 547 The supreme be or was as for such emotional the other results from it for such that the conduct of the defendant 1 intentionally liability to adopted 585 So 2d 1205 Company and outrageous conduct extreme distress and if bodily harm order Monsanto v was of decency and other trivialities necessarily be expected language and to occasional be are regarded to not are degree indignities enough out that the conduct as atrocious and as to be hardened that acts in extreme so Mere insults community or to pointed threats to go beyond a certain all utterly intolerable annoyances trigger liability rather to must amount inconsiderate and unkind petty persons of rough Richardson 2000 0393 p 4 808 So 2d at 547 The facts asserted of emotional distress does not causing inflict allege facts severe severe against against Mr Falcon Mr Gurba that he caused intentional infliction are by filing the lawsuit against him that rise to the level of emotional distress and does emotional distress or not knew that 6 extreme This and outrageous conduct show that Mr Falcon desired severe to emotional distress would be certain or basis for essentially an certain result from his conduct to no factual action for intentional infliction of emotional distress The seventh mentioned in the of action listed is for cause cause of action for negligence for violation of the Uniformed Services Act Thus there is USERRA 38 U S A C 94311 negligence The Employment eighth and Mr cause Falcon is not is of action Reempolyment Rights Mr Falcon is not mentioned in this cause of a cause of action either After action a thorough review against Mr Falcon we and find that Mr Gurba has failed we affirm the trial peremptory exception raising the objection of Mr Gurba s suit court no cause to state judgment granting of action and the dismissing against Mf Falcon with prejudice Costs are assessed against Mr Gurba AFFIRMED 7
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