Fakier v. STATE, BD. OF SUP'RS FOR UNIV.

983 So. 2d 1024, 234 Educ. L. Rep. 444
CourtLouisiana Court of Appeal
DecidedMay 28, 2008
Docket08-111
StatusPublished
Cited by12 cases

This text of 983 So. 2d 1024 (Fakier v. STATE, BD. OF SUP'RS FOR UNIV.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fakier v. STATE, BD. OF SUP'RS FOR UNIV., 983 So. 2d 1024, 234 Educ. L. Rep. 444 (La. Ct. App. 2008).

Opinion

983 So.2d 1024 (2008)

Narriman FAKIER
v.
STATE of Louisiana, BOARD OF SUPERVISORS FOR the UNIVERSITY OF LOUISIANA SYSTEM, et al.

No. 08-111.

Court of Appeal of Louisiana, Third Circuit.

May 28, 2008.

*1025 Steven J. Dupuis, Special Assistant Attorney General, Lafayette, LA, for Defendant/Appellee, Board of Supervisors of the University of Louisiana System through the University of Louisiana at Lafayette.

Edmond L. Guidry, III, St. Martinville, LA, for Plaintiff/Appellant, Narriman Fakier.

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, JOHN D. SAUNDERS, and ELIZABETH A. PICKETT, Judges.

THIBODEAUX, Chief Judge.

In 2005, plaintiff-appellant, Narriman Fakier (Fakier), brought claims against her employer, defendant-appellee, the Board of Supervisors of the University of Louisiana System Through the University of Louisiana at Lafayette (Board), for wrongful termination, retaliatory discharge, violations of state whistle blower statutes, and violation of the First Amendment right of free speech. The Board filed a document entitled "Peremptory Exceptions of No Cause of Action and/or No Right of Action," based upon the First *1026 Amendment claim. The trial court granted the exception of no cause of action, denied the exception of no right of action, and dismissed the First Amendment claim. The partial judgment signed by the trial court was designated as a final judgment. Fakier immediately appealed the judgment. For the reasons set forth below, we find that the trial court improperly certified the partial judgment as final, and we dismiss the appeal.

I.

ISSUES

We must decide:

(1) whether the partial judgment of the trial court, granting Defendant's exception as to one of Plaintiff's claims is a final judgment for purposes of an immediate appeal; and, if so
(2) whether the trial court erred in granting the exception and dismissing Plaintiff's claim for employer violation of the First Amendment right of free speech.

II.

FACTS AND PROCEDURAL HISTORY

Narriman Fakier was employed in the field of animal research at the University of Louisiana at Lafayette with the New Iberia Research Center (NIRC) between 2002 and 2004. During her tenure, she disagreed with and voiced her concerns about methods and procedures used in testing the primates at NIRC, such as the administration of group anesthesia. Fakier also took issue with the care given to the primates, including an alleged incident involving cruelty toward the chimps by a certain employee, who was apparently terminated for the behavior. In her Petition for Damages, Fakier alleged violations of the Animal Welfare Act and stated that she complained to her supervisor and the director of NIRC to no avail. Her petition states that she was told by the director in 2003 that her concerns would not be addressed and that, if she had a problem with that, she should quit.

Fakier's petition further states that on February 4, 2004, she wrote her supervisor a letter via e-mail, complaining about an alleged relocation of the chimps. Her petition alleges that on February 6, 2004, she was forced to resign her position as coordinator for NIRC due to her use of poor judgment, failure to follow chain of command, failure to comply with counseling, threatening the security of NIRC, and insubordination. Fakier's petition further alleges that on February 8, 2004, she forwarded correspondence to the chairperson of the Institutional Animal Care and Use Committee (IACUC) of NIRC, an oversight committee relied upon by the government to monitor its own house. She alleges that she filed claims with the USDA and other outside agencies, but does not provide dates for those filings. Fakier's petition alleges that she is the original source for the facts and information alleged in the petition and that the facts averred are based upon her personal observation.

The trial court sustained the exception of no cause of action on the basis that Fakier's speech was pursuant to her job duties and was, therefore, subject to employer discipline and not protected by the First Amendment. The August 2007 Judgment, prepared by Fakier and disapproved by the Board, states that the Judgment is designated as a final judgment. Fakier filed a Petition for Appeal and an Order, both of which state that there is no just reason for delaying the appeal. The Order is signed by the trial judge. However, other than a conclusory statement that there is no just reason for delay, no specific reasons for that finding were given.

*1027 III.

LAW AND DISCUSSION

Standard of Review

The proper standard of review for an order designating a judgment as final and immediately appealable, when the order is accompanied by explicit reasons for the certification, is whether the trial court abused its discretion. However, if the trial court fails to give explicit reasons for the certification, the appellate court should conduct a de novo determination of whether the certification was proper. R.J. Messinger, Inc. v. Rosenblum, 04-1664 (La.3/2/05), 894 So.2d 1113. Accordingly, we will conduct a de novo review. Likewise, because the peremptory exception of no cause of action raises a question of law and the district court's decision is based solely on the sufficiency of the petition, review of the district court's ruling on a peremptory exception of no cause of action is de novo. Scheffler v. Adams and Reese, LLP, 06-1774 (La.2/22/07), 950 So.2d 641.

The Law on Partial Judgments and La.Code Civ.P. art. 1915

In the present case, the trial court sustained an exception of no cause of action, dismissing only one of Fakier's claims, the alleged violation of her First Amendment right of free speech. Fakier asserts that it was error to dismiss the claim because it arose out of the same operative facts as her other claims for wrongful termination, retaliatory discharge and violation of state whistle blower statutes. She further argues that the trial court erred in dismissing her claim and in finding that her speech was made pursuant to her official job duties as a public employee and, therefore, not protected from employer discipline by the First Amendment. The Board argues that, as a threshold matter, the appeal is premature and should be dismissed as to a violation of the First Amendment right of free speech. Alternatively, the Board argues that the trial court properly dismissed the claim because Fakier's petition repeatedly indicates that she spoke pursuant to her job duties wherein she alleged that she was forced to resign two days after sending an e-mail to her supervisor about animal safety violations, but two days before forwarding the e-mail to an outside agency.

Because we find that the judgment in this case was improperly certified as a final, immediately appealable judgment, we do not reach the issue of whether there was a free speech cause of action stated in Fakier's petition.

More specifically, La.Code Civ.P. art. 1915 states as follows:

Art. 1915. Partial final judgment; partial judgment; partial exception; partial summary judgment
A. A final judgment may be rendered and signed by the court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court:
(1) Dismisses the suit as to less than all of the parties, defendants, third party plaintiffs, third party defendants, or intervenors.

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Bluebook (online)
983 So. 2d 1024, 234 Educ. L. Rep. 444, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fakier-v-state-bd-of-suprs-for-univ-lactapp-2008.