JAMES CUNNINGHAM * NO. 2021-CA-0532
VERSUS * COURT OF APPEAL THE CITY OF NEW ORLEANS * & THE NEW ORLEANS FOURTH CIRCUIT POLICE DEPARTMENT * STATE OF LOUISIANA *******
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-02521, DIVISION “A” Honorable Ellen M. Hazeur, Judge ****** Judge Dale N. Atkins ****** (Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Pro Tempore Lynn M. Luker)
Frank G. DeSalvo Shannon R. Bourgeois FRANK G. DeSALVO, APLC 739 Baronne Street New Orleans, LA 70113
COUNSEL FOR PLAINTIFF/APPELLANT
Daniel T. Smith, Assistant City Attorney Isaka R. Williams, Assistant City Attorney Corwin M. St. Raymond, Deputy Assistant City Attorney Churita H. Hansell, Chief Deputy City Attorney Donesia D. Turner, City Attorney 1300 Perdido Street City Hall - Room 5E-03 New Orleans, LA 70112
COUNSEL FOR DEFENDANTS/APPELLEES
AFFIRMED MARCH 30, 2022 DNA TFL LML
This tort appeal arises from a civil service matter in which the New Orleans
Police Department (hereinafter “NOPD”) brought disciplinary proceedings against
a police officer after his involvement in a domestic dispute. Appellant, James
Cunningham (hereinafter “Mr. Cunningham”1), appeals the trial court’s October
15, 2020 judgment, which granted the Third Exception of No Cause of Action filed
by Appellee, the City of New Orleans (hereinafter “City”), and by some City
employees, namely Shaun Ferguson, Michael Harrison, Arlen Barnes, Derek Frick,
Arlinda Westbrook, and Shontee Smothers, and dismissed Mr. Cunningham’s
Petition for Damages with prejudice. For the following reasons, we affirm the trial
court’s judgment.
1 As discussed more fully throughout this Opinion, James Cunningham served as an officer with NOPD at the time of the incident giving rise to this suit; however, based on the record before this Court, it is unclear whether he is presently employed as a police officer with NOPD or with any other police department. Accordingly, this Opinion will refer to James Cunningham as “Mr. Cunningham” rather than “Officer Cunningham.”
1 FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petition for Damages
After he was arrested following a domestic dispute that occurred on January
13, 2015, NOPD commenced disciplinary proceedings against Mr. Cunningham,
who was an off-duty police officer with NOPD at the time of the dispute.2 On
March 2, 2016, NOPD conducted Mr. Cunningham’s disciplinary hearing relating
to the domestic dispute, but he did not attend the hearing.3 On March 17, 2016,
NOPD terminated Mr. Cunningham. He filed an appeal of his termination to the
Civil Service Commission of the City of New Orleans (hereinafter “Commission”)
on April 5, 2016.
Additionally, after his termination, Mr. Cunningham initiated this legal
proceeding with the filing of a Petition for Damages (hereinafter “Petition”) in the
Civil District Court for the Parish of Orleans on March 17, 2017. In the Petition,
he named the City and NOPD as defendants. Mr. Cunningham stated that his
termination was discriminatory; in violation of La. R.S. 23:332;4 and retaliatory.
2 Because the facts of the incident are not relevant to this appeal, instead of reproducing them in this Opinion, we adopt the factual background produced in this Court’s Opinion in response to Mr. Cunningham’s prior appeal. See Cunningham v. New Orleans Police Dep’t, 2018-0095 (La. App. 4 Cir. 10/10/18), 257 So.3d 801. 3 In briefing to this Court, Mr. Cunningham and the City dispute the reason for his absence at the March 2, 2016 disciplinary hearing. Mr. Cunningham alleges that he missed the hearing because he was on authorized medical leave. However, the City notes that the Civil Service Commission’s Judgment in this matter ultimately concluded that Mr. Cunningham declined to attend the hearing upon advice of his counsel to invoke his Fifth Amendment right against self-incrimination because criminal charges stemming from the January 13, 2015 domestic dispute were still pending against Mr. Cunningham. 4 Louisiana Revised Statute 23:332 pertains to “[i]ntentional discrimination in employment.”
2 Mr. Cunningham also asserted that, as a result of his wrongful termination, he
suffered “los[t] wages, fright, fear, mental anguish, emotional distress and all
damages as are reasonable under the circumstances.” Further, he alleged that he
suffered injuries as a result of the City and NOPD unlawfully confining his person.
Mr. Cunningham listed these injuries as including physical injuries, mental
suffering, loss of earnings, injury to his reputation, and deprivation of any right
caused by the loss of liberty.
First Exception of No Cause of Action
In response to the Petition, on May 19, 2017, the City and NOPD filed a
Declinatory Exception of Lack of Jurisdiction;5 a Peremptory Exception of No
Cause of Action (hereinafter “First Exception of No Cause of Action”); 6 and a
Peremptory Exception of Prescription.7 However, the City agreed to continue
these exceptions pending the outcome of Mr. Cunningham’s appeal to the
Commission.
Civil Service Commission Hearing and Judgment
On June 29, 2017, the Commission conducted a hearing regarding Mr.
Cunningham’s appeal of his termination, and Mr. Cunningham was present at the
hearing. In his appeal to the Commission, Mr. Cunningham contended that his
5 In the Exception of Lack of Jurisdiction, the City and NOPD argued that the trial court “lacked subject matter jurisdiction over [Mr. Cunningham]’s claims for damages resulting from his allegedly wrongful termination, which can only properly be resolved by the [Commission].” 6 In the First Exception of No Cause of Action, the City and NOPD argued that Mr. Cunningham failed to allege well-pleaded facts to support a cause of action for employment discrimination or retaliation. 7 In the Exception of Prescription, the City and NOPD argued that Mr. Cunningham’s claims resulting from his arrest prescribed one year after his arrest and detention and had prescribed by the date Mr. Cunningham filed his Petition on March 17, 2017.
3 termination was arbitrary, unreasonable, and without any basis in fact or law.
Additionally, at the June 29, 2017 hearing, Mr. Cunningham argued that his due
process rights had been violated because he had not received a meaningful
opportunity to respond to the disciplinary allegations against him prior to his
termination.
The Commission, in an October 17, 2017 judgment, upheld Mr.
Cunningham’s termination from NOPD. Further, the Commission found that Mr.
Cunningham’s due process rights had not been violated during his disciplinary
proceedings. Rather, the Commission determined that Mr. Cunningham decided
not to attend his March 2, 2016 disciplinary hearing on advice of counsel because
he wanted to invoke his Fifth Amendment right against self-incrimination as
criminal charges stemming from the domestic dispute were still pending against
him. The Commission concluded that Mr. Cunningham declining to attend the
disciplinary hearing did not change the fact that the City presented Mr.
Cunningham with an opportunity to be heard and did not violate his due process
rights.
On October 24, 2017, Mr. Cunningham filed a Notice of Appeal regarding
the Commission’s October 17, 2017 judgment. In his Notice of Appeal, Mr.
Cunningham asserted that “[t]he [Commission] erred in denying [his] appeal.” The
matter proceeded before this Court.
Prior Appeal
Mr. Cunningham’s appeal of the Commission’s October 17, 2017 judgment
resulted in this Court’s decision in Cunningham, 2018-0095, 257 So.3d 801. In his
prior appeal to this Court, Mr. Cunningham did not appeal that portion of the
Commission’s judgment which determined that his due process rights had not been
4 violated. Id., 2018-0095, p. 4, 257 So.3d at 804. Instead, in briefing to this Court,
Mr. Cunningham’s assignments of error concerned whether the Commission
abused its discretion and acted arbitrarily and capriciously by upholding his
termination. Id. This Court determined that the Commission abused its discretion
and acted arbitrarily and capriciously by upholding Mr. Cunningham’s termination
because his termination was contrary to NOPD’s Disciplinary Hearings and
Penalty Schedule. Id., 2018-0095, pp. 9-10, 257 So.3d at 807. This Court reversed
the Commission’s decision affirming NOPD’s termination of Mr. Cunningham and
ordered NOPD to reinstate him, subject to a ten-day suspension. Id., 2018-0095, p.
10, 257 So.3d at 807.
First Amending Petition
After this Court rendered its Opinion in Mr. Cunningham’s prior appeal, on
July 9, 2019, Mr. Cunningham filed a “Motion for Leave to File [a] First
Supplemental and Amending Petition,” which the trial court granted on July 17,
2019 (hereinafter “First Amending Petition”). In his First Amending Petition, Mr.
Cunningham listed as additional defendants, in both their individual and official
capacities, some current and former employees of NOPD, namely Ronal Serpas,
Michael Harrison, Shaun Ferguson, Arlen Barnes, Derek Frick, Randy Mushatt,
Doc Watson, Danny Wharton, Arlinda Westbrook, and Shontee A. Smothers
(hereinafter collectively “City Employees”).
In the First Amending Petition, Mr. Cunningham alleged that, beginning in
November 2011, he had endured and suffered “a pattern of continuous harassment,
mental distress and intentional infliction of emotional distress, inability to advance
in rank due to retaliation, a series of harassing and defamatory unfounded
disciplinary actions, being publicly defamed and denigrated and being made to
5 endure false and retaliatory accusations . . . . ” Further, Mr. Cunningham contended
that his “due process rights under the Louisiana Constitution were violated because
the City [] through [NOPD] and Superintendent Shaun Ferguson, former [NOPD]
Superintendent Ronal Serpas[,] and former [NOPD] Superintendent Michael
Harrison deprived [him] of his liberty right of employment and took years of his
salary without giving him due process to contest the reasons for his termination.”
Specifically, Mr. Cunningham contended that he did not receive proper notice of
the disciplinary charges against him or an opportunity to refute those charges.
Regarding the City Employees in particular, Mr. Cunningham asserted that
the City Employees prevented or interfered with his ability to secure employment
with another law enforcement entity “by refusing to release his personnel records
when requested and/or maintaining unfounded public integrity complaints.” Mr.
Cunningham also asserted that the City Employees engaged in a “concerted and
intentional effort . . . to deny [him] life, liberty, and pursuit of happiness, in
violation of his rights under the Louisiana Constitution.” Additionally, he argued
that both the City and the City Employees engaged in intentional infliction of
emotional distress, defamation, and injury to his employment record and future
promotion and employment prospects.
Second Exception of No Cause of Action
In response to Mr. Cunningham’s First Amending Petition, on September
16, 2019, the City and some of the City Employees8 filed Exceptions of Lack of
Subject Matter Jurisdiction, Prematurity, No Cause of Action, and Prescription. In
this Exception of No Cause of Action (hereinafter “Second Exception of No Cause
8 Namely, the City Employees who filed these exceptions were Shaun Ferguson, Michael Harrison, Arlen Barnes, Derek Frick, Arlinda Westbrook, and Shontee Smothers.
6 of Action”), they asserted that Mr. Cunningham had not pled any specific factual
allegations to justify naming the City Employees in their individual capacities.
Additionally, they asserted that Mr. Cunningham failed to adequately plead facts to
sustain his claims for discrimination; retaliation; workplace harassment or hostile
work environment; intentional infliction of emotional distress; defamation; and
deprivation of due process. On November 22, 2019, the trial court conducted a
hearing on the exceptions. In a December 11, 2019 judgment, the trial court, in
pertinent part, granted the Second Exception of No Cause of Action but gave Mr.
Cunningham fifteen days to amend his petition.
Second Amending Petition
On December 24, 2019, Mr. Cunningham filed a “Motion for Leave to File
Plaintiff’s Second Supplemental and Amending Petition,” which the trial court
granted (hereinafter “Second Amending Petition”). In the Second Amending
Petition, Mr. Cunningham contended that he “did not attend [his] disciplinary
hearing because he was on authorized medical leave from [NOPD] when the
hearing was conducted.” Addressing his claim for retaliation, Mr. Cunningham
asserted:
[Mr. Cunningham] would submit that he had engaged in the protected activity of reporting [NOPD] [O]fficer Danny Wharton and other [NOPD] officers to the independent police monitor for the lack of due process afforded to [him] . . . and, as a result of these complaints, he suffered [] the adverse employment action of being terminated from his employment as a[n] [NOPD] officer while on medical leave and without a hearing and a causal relationship exists between his complaints about [Officer] Danny Wharton and other [NOPD] [o]fficers [and his] termination.
Further, Mr. Cunningham alleged, with respect to his intentional infliction of
emotional distress claim, “that the actions of each of the named defendants . . . was
extreme and outrageous”; that “the emotional distress suffered by [him] was
7 severe”; and that “each of the named defendants desired to inflict severe emotional
distress or knew that severe emotional distress would be certain or substantially
certain to result from their conduct . . . .” Regarding his defamation claim, Mr.
Cunningham argued that “false and defamatory statement[s] concerning [him]
were made through out the disciplinary process at which he was not permitted to
be present” and that “the outcome of the hearing and the defamatory statements . . .
were made available to the public . . . .”
Third Exception of No Cause of Action
After Mr. Cunningham filed his Second Amending Petition, on July 2, 2020,
the City and some of the City Employees 9 filed another Peremptory Exception of
No Cause of Action (hereinafter “Third Exception of No Cause of Action”). They
contended that Mr. Cunningham’s Petition and First and Second Amending
Petitions (hereinafter collectively “Petitions”) failed to adequately plead additional
facts to state a cause of action for deprivation of due process, retaliation,
intentional infliction of emotional distress, and defamation. Additionally, they
again asserted that Mr. Cunningham had not specifically pled any factual
allegations to justify naming the City Employees in their individual capacities.
Further, they argued that because he did not enhance the Petitions with any new
allegations, Mr. Cunningham had abandoned his claims for discrimination;
workplace harassment and hostile work environment; detention; and wages,
benefits, and emoluments based on his termination.
9 Namely, the City Employees were Shaun Ferguson, Michael Harrison, Arlen Barnes, Derek Frick, Arlinda Westbrook, and Shontee Smothers.
8 October 15, 2020 Judgment
On October 6, 2020, the trial court held a hearing on the Third Exception of
No Cause of Action. In a judgment dated October 15, 2020, the trial court granted
the Third Exception of No Cause of Action and dismissed Mr. Cunningham’s
Petition with prejudice. On October 23, 2020, Mr. Cunningham filed a “Notice of
Appeal,” which the trial court granted on November 9, 2020. This appeal of the
October 15, 2020 trial court judgment follows.
STANDARD OF REVIEW
An exception of no cause of action presents a question of law, so an
appellate court reviews a trial court’s ruling on an exception of no cause of action
de novo. Fertitta v. Regions Bank, 2020-0300, p. 7 (La. App. 4 Cir. 12/9/20), 311
So.3d 445, 451 (citing Ocwen Loan Servicing, LLC v. Porter, 2018-0187, p. 3 (La.
App. 4 Cir. 5/23/18), 248 So.3d 491, 495). See also White v. New Orleans Ctr. for
Creative Arts, 2019-0213, 2019-0214, p. 7 (La. App. 4 Cir. 9/25/19), 281 So.3d
813, 819; Badeaux v. Sw. Comput. Bureau, Inc., 2005-0612, 2005-719, pp. 6-7 (La.
3/17/06), 929 So.2d 1211, 1217.
DISCUSSION
On appeal, Mr. Cunningham does not label anything in his brief to this Court
as an “Assignment of Error.” However, in a section titled “Summary of
Argument,” Mr. Cunningham contends that “[t]he trial court erred when it ruled
that [Mr.] Cunningham’s pleadings, as supplemented, failed to state [a] cause of
action against the City of New Orleans, Shaun Ferguson, Michael Harrison, Arlen
Barnes, Derek Frick, Arlinda Westbrook[,] and Shontee Smothers.” Throughout
his brief, he asserts that his Petitions sufficiently pled a cause of action for (1)
9 deprivation of due process; (2) retaliation; (3) intentional infliction of emotional
distress; and (4) defamation.
No Cause of Action
“No cause of action” is one of the objections that may be raised by the
peremptory exception. La. C.C.P. art. 927(A)(5). “The function of the peremptory
exception is to have the plaintiff’s action declared legally nonexistent, or barred by
effect of law, and hence this exception tends to dismiss or defeat the action.” La.
C.C.P. art. 923. “A peremptory exception of no cause of action questions whether
the law extends a remedy against a defendant to anyone under the factual
allegations of a petition.” Fertitta, 2020-0300, p. 6, 311 So.3d at 450 (quoting
White, 2019-0213, 2019-0214, p. 7, 281 So.3d at 819). It “tests ‘the legal
sufficiency of the petition by determining whether the law affords a remedy on the
facts alleged in the pleading.’” Id. (quoting Green v. Garcia-Victor, 2017-0695, p.
4 (La. App. 4 Cir. 5/16/18), 248 So.3d 449, 453). See also White, 2019-0213,
2019-0214, p. 7, 281 So.3d at 819. The moving party bears the burden of
demonstrating that the petition fails to state a cause of action. Zeigler v. Hous.
Auth. of New Orleans, 2012-1168, p. 7 (La. App. 4 Cir. 4/24/13), 118 So.3d 442,
449 (citing Milburn v. Emanuele, 2012-0235, p. 3 (La. App. 4 Cir. 6/13/12), 96
So.3d 638, 640).
On the trial of a peremptory exception, “[n]o evidence may be introduced at
any time to support or controvert the objection that the petition fails to state a cause
of action.” La. C.C.P. art. 931. Rather, “[i]n deciding an exception of no cause of
action a court can consider only the petition, any amendments to the petition, and
any documents attached to the petition.” Fertitta, 2020-0300, p. 7, 311 So.3d at
451 (quoting Green, 2017-0695, p. 5, 248 So.3d at 453). See also White, 2019-
10 0213, 2019-0214, p. 7, 281 So.3d at 819. “The grant of the exception of no cause
of action is proper when, assuming all well pleaded factual allegations of the
petition and any annexed documents are true, the plaintiff is not entitled to the
relief he seeks as a matter of law.” Id. This Court has explained how a court
reviews the petition in deciding an exception of no cause of action:
The exception [of no cause of action] is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. Indus. Cos. v. Durbin, 2002-0665, p. 6 (La. 1/28/03), 837 So.2d 1207, 1213. . . . An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Id. at p. 7, 837 So.2d at 1213; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007, 1018 (La. 1993). If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 1236 (La. 1993). Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial. Industrial Cos., [20]02-0665[,] p. 7, 837 So.2d at 1213.
Williams v. Wood, 2017-1049, p. 3 (La. App. 4 Cir. 10/31/18), 258 So.3d 834, 837-
38 (quoting Badeaux, 2005-0612, 2005-719, pp. 6-7, 929 So.2d at 1217). Further,
“[a]ny doubt must be resolved in the plaintiff[’s] favor.” Fertitta, 2020-0300, p. 7,
311 So.3d at 451 (quoting Green, 2017-0695, p. 5, 248 So.3d at 453). See also
White, 2019-0213, 2019-0214, p. 8, 281 So.3d at 819.
However, while the well-pleaded facts in the petition are accepted as true
and reasonable interpretation is afforded to the petition, “[i]f the grounds of the
objection raised through the [peremptory] exception cannot be [] removed [by
amendment of the petition], or if the plaintiff fails to comply with [an] order to
amend, the action, claim, demand, issue, or theory shall be dismissed.” La. C.C.P.
art. 934. Additionally, “[a] plaintiff may not merely state legal or factual
11 conclusions in the petition without setting forth facts that support the conclusions.”
Musa v. Musa, 2018-1066, p. 3 (La. App. 4 Cir. 4/3/19), 267 So.3d 1190, 1193
(citing Bibbins v. City of New Orleans, 02-1510, p. 5 (La. App. 4 Cir. 5/21/03), 848
So.2d 686, 691). “[M]ere conclusions of the plaintiff which are unsupported by
facts do not set forth a cause of action.” Fertitta, 2020-0300, p. 7, 311 So.3d at 451
(citing Green, 2017-0695, p. 5, 248 So.3d at 453-54). See also White, 2019-0213,
2019-0214, p. 8, 281 So.3d at 819.
Deprivation of Due Process
Mr. Cunningham asserts that his Petitions state a cause of action for
deprivation of due process. In particular, Mr. Cunningham asserts that his Petitions
allege that he did not receive notice of his March 2, 2016 disciplinary hearing and
that the hearing was held without him present. Mr. Cunningham contends that he
was not present because he was on authorized medical leave at the time of the
disciplinary hearing. Further, he alleges that his Petitions plead deprivation of due
process rights wherein they contain the allegation that the City through NOPD and
through certain City Employees, namely Shaun Ferguson, Ronal Serpas, and
Michael Harrison, “deprived [him] of his liberty right of employment and took
years of his salary without giving him due process to contest the reasons for his
termination.”
In response to Mr. Cunningham’s allegation that he suffered deprivation of
due process, the City argues that Mr. Cunningham raised his due process claims
before the Commission but failed to raise them when he previously appealed to this
Court. Therefore, the City asserts that Mr. Cunningham cannot raise his due
process claims anew in this appeal because they are subject to the principles of
issue preclusion.
12 The United States Constitution states that no state shall “deprive any person
of life, liberty, or property, without due process of law . . . .” U.S. Const. amend.
14, § 1. Further, the Louisiana Constitution provides that “[n]o person shall be
deprived of life, liberty, or property, except by due process of law.” La. Const. art.
1, § 2 (1974). Due process contains a substantive and a procedural aspect. Oliver v.
Orleans Par. Sch. Bd., 2014-0329, 2014-0330, pp. 34-35 (La. 10/31/14), 156 So.3d
596, 619. A violation of substantive due process occurs when someone is deprived
“of a constitutionally-protected property or liberty interest.” Id., 2014-0329, 2014-
0330, p. 35, 156 So.3d at 619-20 (quoting State v. Bazile, 2012-2243, p. 12 (La.
5/7/13), 144 So.3d 719, 730). A violation of procedural due process occurs when
someone does not receive “notice and an opportunity to be heard” prior to the
deprivation of a property or liberty interest. Id., 2014-0329, 2014-0330, p. 35, 156
So.3d at 620 (quoting Bazile, 2012-2243, p. 16, 144 So.3d at 732). The procedural
due process right of notice and opportunity “must be extended at a meaningful time
and in a meaningful manner.” Harris v. Dep’t of Police, 2012-0701, p. 9 (La. App.
4 Cir. 9/14/12), 125 So.3d 1124, 1129 (quoting Moore v. Ware, 2001-3341, p. 13
(La. 2/25/03), 839 So.2d 940, 949). “A due process claim in the context of civil
service employment depends upon an employee having a property right in
continued comparable employment.” Moore, 2001-3341, p. 12, 839 So.2d at 948
(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84
L.Ed.2d 494 (1985)). “Tenured or classified civil service status is a property right
and cannot be taken away without due process.” Id.
In enacting La. R.S. 13:4231, the Louisiana Legislature codified an umbrella
concept of res judicata that “embraces the broad usage of the phrase ‘res judicata’
to include both claim preclusion ([traditional] res judicata) and issue preclusion
13 (collateral estoppel).” Jones v. Daimler N. Am., Inc., 2021-0504, 2021-0505, p. 3
(La. App. 4 Cir. 2/23/22), ___ So.3d ___, ___, 2022 WL 553425, at *4 (quoting
Maschek v. Cartemps USA, 2004-1031, p. 5 (La. App. 4 Cir. 2/16/05), 896 So.2d
1189, 1193).
Issue preclusion is codified in La. R.S. 13:4231(3). “[T]he three
requirements for issue preclusion are (1) a valid and final judgment; (2) identity of
the parties; and (3) an issue that has been actually litigated and determined if its
determination was essential to the prior judgment.” Global Marketing Sols., L.L.C.
v. Chevron U.S.A., Inc., 2018-1765, p. 10 (La. App. 1 Cir. 9/27/19), 286 So.3d
1054, 1061. Under “issue preclusion or collateral estoppel, once a court decides an
issue of fact or law necessary to its judgment, that decision precludes relitigation of
the same issue in a different cause of action between the same parties.” Williams v.
City of Marksville, 2002-1130, p. 3 (La. App. 3 Cir. 3/5/03), 839 So.2d 1129, 1131
(quoting Hudson v. City of Bossier, 33,620, p. 7 (La. App. 2 Cir. 8/25/00), 766
So.2d 738, 743). “Issue preclusion only can be invoked when all its essential
elements are present; and ‘each necessary element must be established beyond all
question.’” Jones, 2021-0504, 2021-0505, p. 3, ___ So.3d ___, ___, 2022 WL
553425, at *5 (quoting Kelty v. Brumfield, 1993-1142 p. 8 (La. 2/25/94), 633 So.2d
1210, 1215).
Mr. Cunningham asserted a due process cause of action before the
Commission during his appeal of his termination. In its October 17, 2017
judgment, the Commission observed that Mr. Cunningham “avers that he did not
have a meaningful opportunity to respond to the allegations against him.” The
commission then addressed Mr. Cunningham’s due process contention and found
that he received a meaningful opportunity to respond to the allegations against him
14 but chose not to be present at his March 2, 2016 disciplinary hearing on the advice
of counsel in order to invoke his Fifth Amendment right against self-incrimination.
The Commission concluded that Mr. Cunningham’s decision “does not change the
fact that NOPD offered [for him] to present a response to the allegations against
him through a pre-disciplinary hearing.” When Mr. Cunningham appealed the
commission’s judgment to this Court, he did not assign as error the Commission’s
finding regarding the lack of deprivation of his due process rights. As a result, the
three requirements for issue preclusion are satisfied. The first element is met by the
Commission’s October 17, 2017 judgment, which is a valid and final judgment.
The second element requires the parties in both proceedings to be identical: Mr.
Cunningham and the City were parties before the Commission and the trial court.
The third and final element is satisfied because the alleged deprivation of Mr.
Cunningham’s due process rights was actually litigated and determined in the
Commission’s proceedings, and its determination was essential to the prior
judgment. Mr. Cunningham’s opportunity to appeal this issue was when he brought
his prior appeal of the Commission’s judgment before this Court; and the
Commission’s finding regarding Mr. Cunningham’s deprivation of due process
claim became conclusive upon the expiration of time to appeal the Commission’s
October 17, 2017 judgment.10 To allow Mr. Cunningham’s deprivation of due
10 See La. C.C.P. art. 2087(A), which is titled “[d]elay for taking devolutive appeal,” and provides:
A. Except as otherwise provided in this Article or by other law, an appeal which does not suspend the effect or the execution of an appealable order or judgment may be taken within sixty days of any of the following:
15 process cause of action at this juncture would result in “relitigation of the same
issue in a different cause of action between the same parties.” Williams, 2002-
1130, p. 3, 839 So.2d at 1131 (quoting Hudson v. City of Bossier, 33,620, p. 7, 766
So.2d at 743).
Moreover, Mr. Cunningham did not sufficiently plead a cause of action for
deprivation of due process because he has failed to set forth facts that support his
contention that he did not receive notice of the March 2, 2016 disciplinary hearing
and has further failed to explain why his alleged status on medical leave prevented
him from attending the hearing or why he failed to request a motion to continue if
that were the case. See A.M.E. Disaster Recovery Servs., Inc. v. City of New
Orleans, 2010-1755 (La. App. 4 Cir. 8/24/11), 72 So.3d 454 (explaining that the
City abided by the due process opportunity requirement even though the appellant
declined to attend the hearing). Thus, the trial court correctly granted the Third
Exception of No Cause of Action with respect to Mr. Cunningham’s deprivation of
due process claim.
Retaliation
Next, Mr. Cunningham contends that his Petitions sufficiently state a cause
of action for retaliation. In support of his retaliation claim, Mr. Cunningham
asserted in his Petitions and in his brief to this Court:
When [Mr. Cunningham] engaged in the protected activity of reporting [NOPD] [O]fficer Danny Wharton and other [NOPD]
(1) The expiration of the delay for applying for a new trial or judgment notwithstanding the verdict, as provided by Article 1974 and Article 1811, if no application has been filed timely.
(2) The date of the mailing of notice of the court’s refusal to grant a timely application for a new trial or judgment notwithstanding the verdict, as provided under Article 1914.
16 officers to the independent police monitor for the lack of due process afforded to [him] for complaints sustained against him and, as a result of these complaints, he suffered [] the adverse employment action of being terminated from his employment as a[n] [NOPD] officer while on medical leave and without a hearing and a causal relationship exists between his complaints about [Officer] Wharton and other [NOPD] Officers and his termination.
In sum, Mr. Cunningham claims that his Petitions state a retaliation cause of action
because they provide that he suffered retaliation for reporting that his due process
rights were violated during his disciplinary proceedings.
Louisiana Law contains whistleblower statutes that “provide[] protection to
employees against reprisal from employers for reporting or refusing to participate
in illegal work practices.” Hale v. Touro Infirmary, 2004-0003, p. 6 (La. App. 4
Cir. 11/3/04), 886 So.2d 1210, 1214. Public employees who report or refuse to
participate in illegal practices may have a right of action against their employer
under two whistleblower statutes, namely La. R.S. 23:967 and La. R.S. 42:1169.
See Puig v. Greater New Orleans Expressway Comm’n, 2000-0924, p. 3 (La. App.
5 Cir. 10/31/00), 772 So.2d 842, 843 (holding “[w]e do not find [La.] R.S. 23:967
and [La.] R.S. 42:1169 to be mutually exclusive”). Each of these is discussed in
turn.
Louisiana Revised Statute 23:967,11 Louisiana’s anti-reprisal statute, states,
in pertinent part:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
11 Louisiana Revised Statute 23:967 is titled “[e]mployee protection from reprisal; prohibited practices; remedies.”
17 (2) Provides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
La. R.S. 23:967(A). This Court has previously determined “that the very specific
language referring to a ‘violation of law’” in La. R.S. 23:967 “manifests a desire
by the Louisiana legislature to only provide a remedy . . . [when the employer’s]
practices are in actual violation of law, and not simply practices disagreed with or
found distasteful by the employee.” Hale, 2004-0003, p. 8, 886 So.2d at 1215.
Regarding public employees and employers, La. R.S. 42:116912 is found in
the “Code of Governmental Ethics” section of the revised statutes. It provides, in
pertinent part:
Any public employee who reports to a person or entity of competent authority or jurisdiction information which he reasonably believes indicates a violation of any law or of any order, rule, or regulation issued in accordance with law or any other alleged acts of impropriety related to the scope or duties of public employment or public office within any branch of state government or any political subdivision shall be free from discipline, reprisal, or threats of discipline or reprisal by the public employer for reporting such acts of alleged impropriety.
La. R.S. 42:1169(A) (emphasis added). For a public employee to be protected from
discipline or reprisal, La. R.S. 42:1169 requires merely the reasonable belief that a
violation of the Code of Governmental Ethics has occurred, not an actual violation
of state law like La. R.S. 23:967 requires. Puig, 2009-0924, pp. 4-5, 772 So.2d at
844-45.
Mr. Cunningham claims that he suffered retaliation for reporting that his due
process rights were violated during his disciplinary proceedings. However, as
12 Louisiana Revised Statute 42:1169 is titled “[f]reedom from reprisal for disclosure of improper acts.”
18 discussed previously, Mr. Cunningham is precluded from asserting a due process
cause of action per La. R.S. 13:4231; so his retaliation cause of action, which is
based on and dependent upon the alleged due process violation, is likewise
precluded.
Moreover, our de novo review of the Petitions reveals that Mr. Cunningham
has not sufficiently pled a retaliation cause of action by establishing either a
reasonable belief in a violation of the Code of Governmental Ethics under La. R.S.
42:1169(A) or an actual violation of law under La. R.S. 23:967(A). The alleged
violation is of Mr. Cunningham’s due process rights, but, as discussed, his
Petitions did not adequately plead a lack of notice and opportunity to support a
deprivation of due process cause of action. Therefore, the trial court correctly
granted the Third Exception of No Cause of Action with respect to Mr.
Cunningham’s retaliation claim.
Intentional Infliction of Emotional Distress
Further, Mr. Cunningham contends that his Petitions state a cause of action
for intentional infliction of emotional distress. In particular, he contends that his
Petitions allege that “[t]he actions of the named defendants was [sic] extreme and
outrageous and the emotional distress suffered by [Mr. Cunningham] was severe,
and each of the named defendants desired to inflict severe emotional distress or
knew that severe emotional distress would be certain or substantially certain to
result from their conduct.”
In Louisiana, “[e]very act whatever of man that causes damage to another
obliges him by whose fault it happened to repair it.” La. C.C. art. 2315. Under
Louisiana jurisprudence, to recover for intentional infliction of emotional distress,
a plaintiff must establish that (1) the defendant’s conduct was extreme and
19 outrageous; (2) the plaintiff suffered severe emotional distress; and (3) the
defendant desired to inflict severe emotional distress or knew that it would be
certain or substantially certain to result from the conduct. White v. Monsanto, 585
So.2d 1205, 1209 (La. 9/9/91). See also Prest v. La. Citizens Prop. Ins. Corp.,
2012-0513, p. 13 (La. 12/4/12), 125 So.3d 1079, 1089 n.5. The nature of the
conduct must be “so outrageous in character, and so extreme in degree” that it goes
“beyond all possible bounds of decency, and [is] regarded as atrocious and utterly
intolerable in a civilized community.” White, 585 So.2d at 1209. “[M]ere insults,
indignities, threats, annoyances, petty oppressions, or other trivialities” do not
result in liability for intentional infliction of emotional distress. Id. In addition,
“[o]ne who by extreme and outrageous conduct intentionally causes severe
emotional distress to another is subject to liability for such emotional distress, and
if bodily harm to the other results from it, for such bodily harm.” Id.
Regarding intentional infliction of emotional distress in the workplace, the
Louisiana Supreme Court has explained:
A plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger. Hall [v. May Dep’t Stores Co., 292 Or. 131, 637 P.2d 126 (1981)], Contreras [v. Crown Zellerbach Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977)], and Alcorn [v. Anbro Eng’g, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970)].
On the other hand, conduct which may otherwise be extreme and outrageous, may be privileged under the circumstances. Liability does not attach where the actor has done no more than to insist upon his legal rights in a permissible way, even though he is aware that such insistence is certain to cause emotional stress. [RESTATEMENT (SECOND) OF TORTS § 46 cmt. g (AM. LAW INST. 1965)]. Thus, disciplinary action and conflict in a pressure-packed workplace environment, although calculated to cause some degree of mental anguish, is not ordinarily actionable. Recognition of a cause of action for intentional infliction of emotional distress in a workplace environment has usually been limited to cases involving a pattern of deliberate, repeated harassment over a period of time.
20 White, 585 So.2d at 1210.
For example in Mederos v. St. Tammany Parish Government, the plaintiff,
Sheryl Mederos, worked in the human resources department for the St. Tammany
Parish Government between 1982 and 2013. 2015-1602, p. 2 (La. App. 1 Cir.
7/11/16), 199 So.3d 30, 32. In 2013, one of the defendants, Leslie Montgomery,
became the new human resources director for the Parish. Id. Shortly after Ms.
Montgomery became the human resources director, she suspended the plaintiff for
“a few days off to decide if [the plaintiff] was going to get on board with the
changes being made in the structure of the department”; chastised her for having
lunch with an IRS auditor during a time when the Parish was being audited by the
IRS; and issued a written reprimand to the plaintiff. Id., 2015-1602, pp. 2, 11, 199
So.3d at 32, 37. After the trial court granted summary judgment in favor of Ms.
Montgomery regarding the plaintiff’s assertion of intentional infliction of
emotional distress, the First Circuit Court of Appeal affirmed and held that Ms.
Montgomery’s actions “represent[] nothing more than . . . insisting upon her legal
rights as the Human Resources director and initiating disciplinary action, which is
not regarded as actionable.” Id., 2015-1602, p. 11, 199 So.3d at 38.
Likewise, in his Petitions, Mr. Cunningham has not supported “a pattern of
deliberate, repeated harassment over a period of time” in the workplace or conduct
on the part of the City that supports an intentional infliction of emotional distress
cause of action. See White, 585 So.2d at 1210. Rather, the City’s actions in
arresting Mr. Cunningham and conducting disciplinary proceedings following his
involvement in a domestic dispute were within the City’s legal rights to discipline
Mr. Cunningham as an employee for violating NOPD’s policy regarding the off-
21 duty use of alcohol. See Mederos, p. 11, 199 So.3d at 38. Mr. Cunningham has
failed to plead specific facts that demonstrate (1) that the City’s conduct was
extreme and outrageous; (2) that he suffered severe emotional distress; and (3) that
the City desired to inflict severe emotional distress or knew that it would be certain
or substantially certain to result from the conduct. See White, 585 So.2d at 1209;
Prest, 2012-0513, p. 13, 125 So.3d at 1089 n.5. Rather, Mr. Cunningham’s
Petitions contain conclusory statements, not specific facts to support his assertions,
and such conclusory statements are insufficient to support his intentional infliction
of emotional distress cause of action. See Musa, 2018-1066, p. 3, 267 So.3d at
1193; Fertitta, 2020-0300, p. 7, 311 So.3d at 451; White, 2019-0213, 2019-0214,
p. 8, 281 So.3d at 819. Thus, the trial court correctly granted the Third Exception
of No Cause of Action regarding Mr. Cunningham’s intentional infliction of
emotional distress claim.
Defamation
Last, Mr. Cunningham asserts that his Petitions state a cause of action for
defamation. In briefing to this Court, he contends that this claim “was supported by
the assertion that all actions of each of the named defendants was undertaken to
ruin Mr. Cunningham’s reputation and good name. Moreover, the false and
defamatory statement[s] concerning Mr. Cunningham were made through out his
disciplinary process at which he was not permitted to be present.” Additionally,
Mr. Cunningham points to an excerpt from his Petitions, which states that the City
and NOPD slandered and damaged his reputation by “prompting other department
employees to manufacture evidence and reasons to racially or otherwise
discriminate and to assist in the groundless disciplinary charges made against”
him. In his brief to this Court, Mr. Cunningham also repeats the assertion from his
22 Petitions that the City and NOPD slandered his reputation “by intentionally
denigrating [him] to other persons, employees[,] and superiors prior to and/or after
his wrongful termination [].”
Mr. Cunningham’s purported defamation cause of action emanates from La.
C.C. art. 2315.13 Defamation is a tort that involves “the invasion of a person’s
interest in his or her reputation and good name.” Johnson v. Purpera, 2020-01175,
p. 11 (La. 5/13/21), 320 So.3d 374, 386 (citing Kennedy v. Sheriff of E. Baton
Rouge, 2005-1418, p. 4 (La. 7/10/06), 935 So.2d 669, 674; Costello v. Hardy,
2003-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 139). A defamatory
communication is one that “tends to harm the reputation of another so as to lower
the person in the estimation of the community or to deter others from associating
or dealing with the person.” Trentecosta v. Beck, 1996-2388, p. 10 (La. 10/21/97),
703 So.2d 552, 559 (citing RESTATEMENT (SECOND) OF TORTS § 559 cmt. e (AM.
LAW. INST. 1977)). A plaintiff must establish four elements to succeed in a
defamation claim, namely (1) a false and defamatory statement concerning
another; (2) an unprivileged publication to a third party; (3) fault (negligence or
greater) on the part of the publisher; and (4) resulting injury. Johnson, 2020-01174,
p. 11, 320 So.3d at 386-87 (citing Kennedy, 2005-1418, p. 4, 935 So.2d at 674;
Costello, 2003-1146, p. 12, 864 So.2d at 139; RESTATEMENT (SECOND) OF TORTS §
558 (AM. LAW. INST. 1977)). If a plaintiff cannot establish even one of these
elements, then the defamation cause of action fails. Kennedy, 2005-1418, p. 16,
935 So.2d at 681.
13 Louisiana Civil Code Article 2315 states that “[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.”
23 Privilege is a defense to defamation, and statements made by law
enforcement officers are protected from defamation claims by a qualified privilege
during an ongoing investigation. Kennedy, 2005-1418, p. 16, 935 So.2d at 681;
Dyas v. Shreveport Police Dep’t, 48,804, pp. 11 (La.App. 2 Cir. 2/26/14), 136
So.3d 897, 905 (citing Trentecosta, 1996-2388, pp. 19-20, 703 So.2d at 564). “The
doctrine of privilege rests upon the notion that sometimes, as a matter of public
policy, in order to encourage the free communication of views in certain defined
instances, one is justified in communicating defamatory information to others
without incurring liability.” Kennedy, 2005-1418, p. 16, 935 So.2d at 681 (citing
Toomer v. Breaux, 146 So.2d 723, 725 (La. App. 3 Cir. 1962)). Privileged
communications are divided into two general classes: (1) absolute; and (2)
conditional or qualified. Protected by a conditional or qualified privilege, officers
are “allowed to report the fact of a criminal investigation and an arrest without fear
of a defamation action if the person is cleared of the charges,” but “an officer
cannot add additional injurious statements that the officer had no reason to believe
were true.” Trentecosta, 1996-2388, pp. 19-20, 703 So.2d at 564. Assertion of the
privilege has the effect of “rebut[ting] the plaintiff’s allegations of fault and . . .
plac[ing] the burden of proof on the plaintiff to establish abuse of the privilege.”
Dyas, 48,804, pp. 11, 136 So.3d at 905. The privilege is abused if one (a) knows
the matter to be false, or (b) acts in reckless disregard as to its truth or falsity.
Trentecosta, 1996-2388, p. 20, 703 So.2d at 564, n.16. Therefore, to support a
defamation cause of action where a defendant is protected by a qualified privilege,
a plaintiff must prove: (1) a false and defamatory statement concerning another; (2)
an unprivileged publication to a third party; (3) fault (negligence or greater) on the
part of the publisher; (4) resulting injury; (5) that the defendant knew the matter to
24 be false; and (6) that the defendant acted in reckless disregard as to its truth or
falsity. Johnson, 2020-01174, p. 11, 320 So.3d at 386-87; Trentecosta, 1996-2388,
p. 20, 703 So.2d at 564, n.16.
Our de novo review of the Petitions reveals that Mr. Cunningham has not set
forth facts to support his defamation cause of action. Notably, the Petitions do not
establish the first element of a defamation cause of action because they do not
specify (1) the false and defamatory statements that the City or the City Employees
allegedly made concerning Mr. Cunningham. Because the failure of a plaintiff to
establish even one of the defamation elements is fatal to his claim, Mr.
Cunningham’s Petitions do not support a defamation cause of action. Kennedy,
2005-1418, p. 16, 935 So.2d at 681. Moreover, we note that Mr. Cunningham also
failed to plead the remaining defamation elements and the elements to overcome
the qualified privilege that the City and the City Employees would have received in
investigating Mr. Cunningham during his disciplinary proceedings: he has not
sufficiently pled facts to establish (2) an unprivileged publication to a third party;
(3) fault (negligence or greater) on the part of the publisher; (4) resulting injury;
(5) that the City or the City Employees knew the matter to be false; and (6) that the
City or the City Employees acted in reckless disregard as to the matter’s truth or
falsity. Again, Mr. Cunningham’s Petitions merely provide conclusory statements
without any factual support. See Musa, 2018-1066, p. 3, 267 So.3d at 1193;
Fertitta, 2020-0300, p. 7, 311 So.3d at 451; White, 2019-0213, 2019-0214, p. 8,
281 So.3d at 819. Thus, as Mr. Cunningham’s Petitions fail to establish the
elements of defamation and the factors necessary to overcome the qualified
privilege held by law enforcement, we find that the trial court correctly granted the
25 Third Exception of No Cause of action regarding Mr. Cunningham’s defamation
claim.
Claims against City Employees in Their Individual Capacity
Mr. Cunningham also asserts causes of action against the City Employees in
their individual capacities, and he argues that his Petitions sufficiently plead those
causes of action. In support, he points to the following excerpt from his First
Amended Petition:
[T]he intentional and wrongful actions of [NOPD] Public Integrity Bureau Sergeant Arlen Barnes, [NOPD] Public Integrity Bureau Lieutenant Derek Frick, [NOPD] Public Integrity Bureau Chief Arlinda Westbrook, Deputy Chief Randy Mushatt, [NOPD] Public Integrity Bureau Sergeant Danny Wharton and [NOPD] Public Integrity Bureau Lieutenant Doc Watson damaged Mr. Cunningham’s professional character and reputation. The plaintiff’s due process rights under the Louisiana Constitution were violated because the City of New Orleans through [NOPD] and Superintendent Shaun Ferguson, former [NOPD] Superintendent Ronal Serpas[,] and former [NOPD] Superintendent Michael Harrison deprived the plaintiff of his liberty right of employment and took years of his salary without giving him due process to contest the reasons for his termination.
Mr. Cunningham also notes that in his First Amending Petition he alleged that
prior to his termination, each of the City employees prevented him from securing
employment and/or interfered with him securing employment with any other law
enforcement agency by refusing to release his personnel records when requested
and/or by maintaining integrity complaints.
The law provides a “distinction between personal- and official-capacity
action suits.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87
L.Ed.2d 114 (1985). An official-capacity suit constitutes “another way of pleading
against an entity of which an officer is an agent.” Id. (citing Monell v. New York
City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S.Ct. 2018, 2035 n.55, 56
L.Ed.2d 611 (1978)). By contrast, “[p]ersonal or individual capacity suits seek to
26 impose personal liability upon a government official for actions [the government
official] takes under color of state law causing the deprivation of a constitutional
right.” Driscoll v. Stucker, 2004-0589, p. 27 (La. 1/19/05), 893 So.2d 32, 52 (citing
Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 1974; Graham,
473 U.S. 159; Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)).
See also Mederos, 2015-1602, p. 9, 199 So.3d 30, 36-37. “[T]o state a cause of
action against [a government official] in his individual capacity, [a plaintiff] must
show that the face of the petition, taking all well-pleaded facts as true, alleges that
the [government official] acted under color of state law to deprive [the plaintiff] of
a constitutional right.” Harvey v. State, 2014-0035, 2014-0156, 2014-0977, 2014-
0978, 2014-0979, pp. 14-15 (La. App. 4 Cir. 12/16/15), 183 So.3d 684, 696.
The only constitutional right that Mr. Cunningham alleged the City
Employees violated is his right to due process in that he contends the City
Employees did not provide him with an opportunity to contest his termination.
However, as previously discussed, Mr. Cunningham’s deprivation of due process
cause of action is precluded per La. R.S. 13:4231; so his claims against the City
Employees in their individual capacity for deprivation of due process, which stem
from the same alleged violation of the opportunity aspect of due process, are
likewise precluded. Moreover, we note that the accusations against the City
Employees in Mr. Cunningham’s Petitions merely provide conclusory statements
without any factual support. See Musa, 2018-1066, p. 3, 267 So.3d at 1193;
Fertitta, 2020-0300, p. 7, 311 So.3d at 451; White, 2019-0213, 2019-0214, p. 8,
281 So.3d at 819. Accordingly, the trial court correctly granted the Third
Exception of No Cause of Action with respect to the claims against the City
Employees in their individual capacities.
27 DECREE
For the foregoing reasons, the trial court’s October 15, 2020 judgment,
granting the Third Exception of No Cause of Action, is affirmed.
AFFIRMED