Randall Kling VS Louisiana Department of Revenue
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NLJMBER 2012 CA 0778 RANDALL KLING P J N OUISIANA VERSUS DEPARTMENT OF REVENLJE 7udgment Rendered AN 2 5 2013 Appealed from the 19 Judicial District Court In and for the Parish ofEast Baton Rouge Louisiana Trial Court Number 602 141 Honorable William A Morvant Judge J Arthur Smith III Attorneys far Appellant Plaintiff Randall Kling Adrienne D Rachel Baton Rouge LA James D Buddy Caldwell Attorney General Attorneys far Appellee Defendant and Louisiana Department of Revenue E Wade Shows Jacqueline B Wilson Special Assistant Attorneys General Baton Rouge LA BEFORE PARRO HUGHES AND WELCH JJ WELCH J Plaintiff Randall Kling appeals a judgment sustaining a peremptory exception raising the objections of no cause of action and no right of action filed by defendant the Louisiana Department of Revenue Department We reverse and remand BACKGROUND On May 26 2011 Mr Kling filed this lawsuit against the Department alleging that the Departrnent terminated him from his position with the Louisiana Office of Alcohol and Tobacco Control ATC in retaliation for submitting complaints regarding ATC Commissioner Troy Hebert to the Department Specifically Mr Kling made the following allegations On March 10 2011 he and other employees submitted a complaint to Cynthia Bridges the DepartmenYs Secretary regarding what they reasonably believed to be offensive behaviar on Mr s Hebert part Later that month on the 16 22 and 25 Mr Kling submitted additional complaints regarding Mr Hebert sbehavior to Dee Everett Director of Human Resources public concem Mr Kling alleged that the complaints addressed matters of including threats hostile work environment systematic intimidation discrimination harassment inefficiency favoritism humiliation and maral problems in the ATC office On March 30 2011 within a few days of submitting the complaints Mr Kling employment was terminated s Mr Kling alleged that his termination was in retaliation for the exercise of his expressional rights under Article 1 Section 7 of the Louisiana Constitution and he sought reinstatement to his position an award of lost wages and other damages The Department filed a peremptory exception raising the objection of no cause of action The Department claimed the allegations of Mr Kling petition s failed to set forth a cause of action for a free speech retaliation claim because Mr s Kling complaints do not involve matters of public concem but rather are merely 2 complaints of an employee against his superior that are not entitled to constitutional protection On September 21 2011 the trial court granted the s Department exception of no cause of action and gave Mr Kling fifteen days to amend the petition Thereafter Mr Kling filed an amended petition in which he deleted most of the paragraphs of the original petition and replaced them with paragaphs 4 He 10 alleged that on March 10 2011 six members of the Command Staff of the ATC and six employees of the ATC including himself joined in the written complaint to Secretary Bridges In Paragraph 7 of the amended complaint Mr Kling set forth in Subparagraphs A twenty alleged violations of policy procedure X four and law that Mr Kling and the other ATC employees accused Mr Hebert of committing These allegations include among others that Mr Hebert 1 compromised the Civil Service Performance Planning and Review System Subparagraph D 2 operated the ATC in total disregard of the rules of the Louisiana Department of Civil Service Subparagraphs H and O 3 used state resources for personal and political gain and in furtherance of his plan to seek elective office Subparagraph J 4 attempted to undermine ethics laws by attempting to form a non entity whereby funding could be solicited and profit received from the alcohol industry which is regulated by the ATC and boasting that the alcohol industry would gladly donate funds to furnish his proposed new office suite at ATC Subparagraph K 5 schemed to build himself a new office in such a manner as to avoid legislative and Division of Administration oversight Subparagraph L 6 harassed employees who cooperated with the investigations conducted by the Office of Inspector General and the Louisiana State Police concerning the conduct of Murphy Painter Subparagraph N and 7 repeatedly violated sensitive computer policies which violations have the potential to jeopardize sensitive law enforcement initiatives and have placed the safety of the 3 law enfarcement officers in extreme jeopardy Subparagraph X He also alleged that in his March 16 and 22 complaints to Ms Everett he provided further details concerning Mr Hebert abuse harassment and intimidation of him in s particular Additionally Mr Kling alleged that in the complaint sent to Ms Everett on March 25 2011 he complained that Mr Hebert systematic abuse of s employees had been the worst violations of the Civil Service rules he had ever witnessed and concluded the letter by stating tirrational behavior and the his systematic destruction of employees lives and careers as well as the dismantling of the agency itself is unconscionable What I have described to you in this letter is just the tip of the iceberg He further complained in another letter to Ms Everett that day that Mr Hebert sconduct resulted in a hostile wark environment at the ATC Mr Kling asserted that the complaints described in the letters taken as a whole primarily raised issues of public concern even though they raise ancillary issues of private concern He alleged that the issues of public concern principally include misconduct within a law enforcement agency that threatens the ability of the law enforcement agency in this case the ATC to properly perform its duties sexual harassment perpetrated on state workers gender discrimination systematic employment practices that adversely affected the functioning of the agency by placing the safety of the ATC officers in jeopardy damaging the morale of the s ATC employees and causing a mass exit of highly qualified and experienced state workers from the ATC In response the Department filed a peremptory exception raising the objections of no right of action and no cause of action The Department argued that Mr Kling was attempting to assert a claim for retaliatory discharge due to complaints that were not made by him individually but by at least eleven other employees of the ATC retaliatory discharge It urged that Mr Kling could not assert a claim far based on complaints lodged by 4 his workers co The Department claimed that the allegations in the March 10 2011 letter were not made by Mr Kling and did not pertain specifically to him In support of this argument the Department cited complaints of sexual harassment towards females insisting that Mr Kling could not have possibly complained of this as he is not a female Further the Department claimed that an analysis of Mr Kling individual s complaints made in his letters to Ms Everett supported the Department claim s that most of the allegations in Paragraph 7 were not made by Mr Kling The Department asked for the dismissal of all allegations except for Subparagraph A extreme aggressive levels of harassment and intimidation of ATC employees Subparagraph D the Civil Service Performance Planning and compromising Review System Subparagraph F all levels of supervision and undermining Subparagraph O civil service policy and rules It also urged that Mr disregarding s Kling amended petition failed to state a viable cause of action as the complaints he made are simply that of an unhappy employee and not a matter of public concem and therefore are not constitutionally protected In support of its exception of no right of action the Department attached copies of a portion of the March 10 2011 letter to Secretary Bridges and Mr s Kling March 16 22 and 25 complaints to Ms Everett In opposition to the exception Mr Kling submitted the sixteen page March 10 2011 letter including the bulleted list of the grievances by the ATC employees At the hearing on the exceptions the trial court refused to allow Mr Kling s attorney to argue on the basis that the opposition brief was untimely The court also refused to allow Mr Kling to testify on the exception of no right of action on the basis that his opposition brief did not specifically set forth that he was going to offer evidence at the hearing but did allow Mr Kling stestimony to be proffered Evidence was introduced at the hearing including the March 10 2011 letter to 5 Secretary Bridges and Mr Kling letters to Ms Everett The court compared the s allegations made by Mr Kling in his individual letters to Ms Everett with the allegations of Paragraph 7 of the amended petition and found that only four allegations contained in Paragraph 7 matched the complaints set forth in Mr s Kling correspondence to Ms Everett Subparagraphs A D F and O The court concluded that all of the remaining Subparagraphs were not complaints raised by Mr Kling and that Mr Kling could not raise complaints made by other employees in his retaliatory discharge claim Accordingly the trial court struck all remaining Subparagraphs contained in Paragraph 7 from the amended petition Considering only the remaining allegations of the petition the court concluded that it did not set forth a cause of action for retaliatory discharge because none of the allegations rose to the level of public concern but were merely workplace criticisms by Mr Kling in his role as an employee and not as a concerned citizen The court signed a judgment on February 1 2012 sustaining the exception of no right of action and striking nearly all of the subparagraphs of Paragraph 7 of the amended petition and sustaining the exception of no cause of action thereby dismissing Mr Kling s lawsuit with prejudice Mr Kling appealed challenging those rulings as well as the trial court refusal to allow him to participate in oral arguments at the 7anuary s 23 2012 hearing ar to introduce evidence in opposition to the exception of no right of action DISCUSSION Although often confused and improperly combined in the same exception the peremptory exceptions of no cause of action and no right of action are separate and distinct See La C art 927 Robertson v Sun Life P 6 5 A The Depactment offered only a portion of he March 10 2011 letter initially Mr Kling objected to the introduction of the inwmplete letter and offered the entire March iQ 2011 letter The Department objected to the letter to the extent that it contained the names of the other ATC employees citing their privacy concems Mr Kling offered a copy of the entire letter with the names redacted which was considered by the uial court in ruling on the exception of no right of aciion 6 2275 Financial 2009 La App l Cir 6 10 11 40 3d So 507 511 An exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition Id No evidence may be introduced to support or controvert the exception of no cause of action The exception is triable on the face of the pleadings and for determining the issues raised by the exception the well facts in the petition must be pleaded accepted as true If the petition alleges sufficient facts to establish a cause of action an exception of no cause of action must fail Id The exception of no right of action is designed to test whether the plaintiff has a real and actual interest in the action Robertson 40 So3d at 511 See La C art 927 P 6 A The function of the exception is to determine whether the plaintiff belongs to the class of persons to whom the law grants a cause of action asserted in the lawsuit This exception assumes that the petition states a valid cause of action for some person and questions whether the plaintiff is a member of the class that has a legal interest in the subject matter of the litigation Id Unlike the exception of no cause of action evidence may be received In order to prevail the defendant has the burden of establishing that the plaintiff does not have an interest in the subject matter of the lawsuit or legal capacity to proceed with the lawsuit Robertson 40 So at 512 3d Where doubt exists as to the appropriateness of this exception it must be resolved in favar of the plaintif Id Whether a plaintiff has a right of action is a question of law and is reviewed on appeal de novo Gibbs v Delatte 2005 La App l Cir 12 927 0821 05 22 2d So 1131 1135 writ denied 2006 La 4926 So 548 0198 06 24 2d In this case the trial court ruled on the exception of no cause of action after striking numerous allegations of the petition pursuant to the exception of no right of action In order to determine whether the petition states a cause of action we must first determine whether the trial court erred in striking nearly all of the 7 allegations regarding Mr Hebert conduct contained in Paragraph 7 of the s amended petition In support of its exception of no right of action the Department argues that the bulk of the allegations in Paragraph 7 were not made by Mr Kling but were made by the other ATC employees who joined in the complaint The Department contends that if Mr Kling intended to complain about matters set forth in Paragraph 7 such as sexual harassment towards female employees Mr Kling should have raised those complaints in his subsequent letters to Ms Everett The Department insists that Mr Kling failure to assert the complaints set forth in the s group complaint portion of the letter in his subsequent letters is proof that Mr Kling did not actually complain about the matters set forth in Paragraph 7 of the petition It argues that because Mr Kling did not actually make the bulk of the complaints he has no right to assert those complaints in his retaliation lawsuit The March 10 2011 letter sent to Secretary Bridges contains two sections In the first the Command Staff and Employees of the ATC expressed concems as a group regarding Mr Hebert alleged dangerous directives and behavior as s well as numerous violations of ATC policy Department policy and state law The letter notes that the ATC employees are required by the Department to report misconduct violations of policies and rules and violations of law and that as commissioned law enfarcement officers they have a duty to uphold the laws and Constitution of this state and the United States The letter then sets forth forty three violations of policy procedure rules and laws allegedly precipitated by Mr Hebert Thereafter the letter states that in addition to the alleged infractions listed above a number of employees have been the direct recipient of Mr s saggressive behavior The letter goes on to list the individual employees Hebert complaints in this respect including Mr K1ing s 8 To prevail on the exception of no right of action the Department had the burden of establishing that Mr Kling does not have an interest in the subject matter of the lawsuit or the legal capacity to proceed with the lawsuit See Robertson 40 3d So at 512 The Department does not claim that Mr Kling is not one of the members of the Command Staff and Employees of ATC whose complaints are set forth in the first portion of the letter and which appear in Paragraph 7 of the amended petition Nor did it prove that Mr Kling had no interest in any of the complaints set forth in Paragraph 7 of his amended petition The letter makes it clear that the ATC employees as a group alleged violations of policy and law by Mr Hebert In addition to the group complaints the employees set forth their individual claims of mistreatment by Mr Hebert The mere fact that Mr Kling s subsequent letters do not specifically mention the majority of the allegations in Paragraph 7 does not prove that he did not actually complain of the conduct described in that portion of the amended petition Furthermore in order to have an interest in asserting a retaliatory discharge claim Mr Kling does not have to be a direct recipient of the conduct complained of in Paragraph 7 Mr Kling claims that he was terminated from his position in retaliation for the exercise of his constitutionally protected right of free speech His interest in prosecuting this lawsuit is not as a victim of harassment or discrimination but as an employee who was fired in retaliation for complaining about Mr Hebert conduct Thus the fact s that he may not individually have been a victim of some of the complaints in the amended petition such as gender discrimination is of no moment in determining whether he has a right of action to assert a retaliatory discharge claim We find that the Department failed to meet its burden of establishing that Mr Kling had no interest in prosecuting this retaliation claim based on the allegations set forth in Paragraph 7 of the complaint Therefore we find that the trial court committed legal error in granting the exception of no right of action and striking 9 Subparagraphs B C E G H I J K L M N P Q R S T U V and W from the amended petition Having concluded that the trial court erred in striking the above allegations from the amended petition we must now determine whether the allegations of Mr s Kling amended petition set forth a cause of action for retaliatory discharge The First Amendment to the United States Constitution and Article I Section 7 of the Louisiana Constitution protect the right of free speech In particular Article I Section 7 on which Mr Kling lawsuit is based gives Louisiana citizens the right s to speak write and publish their sentiments on any subject It is well settled that an employee of a public entity may not be discharged for exercising his constitutionally protected right to freedom of expression despite his at status wi11 Harrison v Parker 31 La App 2 Cir 5 737 So 160 163 writ 844 99 2d denied 99 La 9747 So 565 To prevail in a retaliation claim a 1597 99 17 2d public employee must allege facts demonstrating that his speech involved a matter of public concern that he has suffered an adverse employment action for exercising his right to free speech and that the exercise of free speech was a substantial or motivating factor in the adverse employment action Johnson v Southern University 2040 La App l Cir 12 803 So 1140 2615 O1 28 2d 1146 Generally whether an employee speech addresses a matter of public s concern must be determined by the content form and context of a given statement as revealed by the record as a whole Connick v Myers 461 U 138 147 S 48 103 S 1684 1690 75 L 708 1983 The law has recognized that there Ct 2d Ed are some types of speech which by their very nature address matters of public concern For instance the disclosure of misbehavior by public officials is a matter Z Because of our ruling we pretermit discussion of Mr Kling second assignment of error wherein he challenges s s the hial court refusal to allow him to parCicipate in or testify at the hearing on the exception of no right ofaction 1 I I of public concern and is therefore entitled to constitutional protection See Ray v City of Bossier City 37 La App 2 Cir 10 859 So 264 273 708 nd 03 24 2d writs denied 2003 2003 La 2 867 So 697 Harrison 737 3214 3254 04 13 2d 2d So at 163 Charles v Grief 522 F 508 514 5 Cir 2008 In Harrison 3d the court held that thz plaintiffls reports of allegedly illegal or unethical conduct in a sheriff s office giving rise to questions concerning the misuse of public funds or possible malfeasance in office dealt with matters of public importance In the amended petition Mr Kling alleged that he and the other ATC employees complained to Secretary Bridges concerning Mr Hebert numerous s violations of policies of the ATC and the Department and state law Specifically the complaint to Secretary Bridges accused Mr Hebert of sexual harassment discrimination on the basis of gender using state resources far personal and political gain and in furtherance of his plan to seek elective office undermining ethics laws by attempting to form a non entity to obtain funding for his profit proposed new office suite at the ATC scheming to build a new office in a manner to avoid oversight by the legislature and the Division of Administration and harassing employees who cooperated with official investigations into another sconduct These allegations of unethical and perhaps illegal conduct on individual Mr Hebert spart clearly are matters of public concern Mr Kling alleged that he was terminated in retaliation for his participation in levying these complaints against Mr Hebert We find that Mr Kling petition does set forth a cause of s action for retaliatory discharge and reverse the trial court sjudgment sustaining the exception of no cause of action and dismissing this lawsuit with prejudice CONCLUSION For the foregoing reasons the judgment sustaining the peremptory exception of no right of action and ordering that enumerated Subparagraphs be stricken from Paragraph 7 of the petition is reversed The judgment sustaining the peremptory 11 exception raising the objection of no cause of action is also hereby reversed This matter is remanded to the trial court for proceedings consistent with this opinion All costs of this appeal in the amount of 1 are assessed to appellee the 15232 Louisiana Department of Revenue REVERSED AND REMANDED 12
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