Judgment rendered January 15, 2020. Application for rehearing may be filed within the delay allowed by Art. 2166, La. C.C.P.
No. 53,135-CA
COURT OF APPEAL SECOND CIRCUIT STATE OF LOUISIANA
*****
KERRY BLAKEMORE Appellant
versus
TOWN OF GRAMBLING Appellee
Appealed from the Third Judicial District Court for the Parish of Lincoln, Louisiana Trial Court No. 55,873
Honorable Bruce Edward Hampton, Judge
G. KARL BERNARD & ASSOCIATES, LLC Counsel for Appellant By: G. Karl Bernard
BREEDLOVE LAW FIRM Counsel for Appellee By: Pamela N. Breedlove
Before MOORE, GARRETT, and COX, JJ. COX, J.
Kerry Blakemore (“Blakemore”) filed suit against the Town of
Grambling (“Grambling”) alleging wrongful termination against the
Grambling Chief of Police and Mayor of Grambling. After five years of
litigation, Grambling filed a motion for summary judgment. Blakemore did
not file an opposing motion. On January 7, 2019, the 3rd Judicial District
Court issued a ruling which granted Grambling’s motion. Blakemore
appeals. For the following reasons, we affirm the district court’s decision.
FACTS
On November 1, 2005, Blakemore accepted a position as a police
officer for Grambling. In 2008, Blakemore briefly resigned from the
Grambling Police Department and worked for the Morehouse Parish
Sheriff’s Department. He returned to Grambling later in 2008. According
to his personnel file, Blakemore had numerous reprimands or memorandums
that led to his dismissal. These reprimands or memorandums as listed in the
personnel file are:
On January 4, 2006, Blakemore was counseled on smoking in the
patrol units.
On January 9, 2006, Blakemore received his first written reprimand
for not timely submitting his incident reports.
On February 7, 2006, Blakemore was reprimanded for failing to
follow the proper protocol regarding a theft. According to the written
reprimand, Blakemore never advised his supervisor, failed to write a
report, and never contacted the Ruston Police. Blakemore then
submitted a report on the incident that failed to meet the Grambling
Police standards for an incident report. On February 14, 2006, Blakemore was again counseled for smoking
in the patrol unit. He was to receive a one-day suspension without
pay.
On February 20, 2006, Blakemore was reprimanded for failing to
properly turn in a report. When confronted, Blakemore cursed and
ignored the orders of a supervising officer. Blakemore received a
two-day suspension without pay.
On May 29, 2006, Blakemore received a written reprimand for failure
to attend a mandatory training seminar. He was advised that failure to
attend a makeup seminar could lead to his termination.
On September 27, 2006, Blakemore received a write-up in his
personnel file for failing to retrieve his Fuelman receipts and for using
premium gas.
On April 17, 2007, Blakemore was written up for leaving the fuel card
and receipts in his patrol car instead of turning in the items to
supervising officers.
On March 1 and May 1, 2008, Blakemore received reprimands for
failing to properly submit daily police logs. Blakemore also received
another two-day suspension for his insubordination.
On September 7, 2009, Blakemore was promoted to sergeant.
On March 2, 2011, he received another reprimand for his failure to
properly file an incident report. According to the memo, Blakemore
failed to even pull a case name to write the report. In the memo,
Chief of Police Tommy Clark stated that it “[was] very unprofessional
for another agency to contact [him] over a serious incident in which
2 [Blakemore’s] pure laziness and judgment caused the Sherriff’s office
to abandon the call in which they wrote a full report explaining why.”
On November 21, 2011, Blakemore failed to call in to dispatch at any
point during his shift. According to Chief Clark, this was something that
should never occur. So, on the evening of November 22, when Blakemore
was on duty with Officer Richard Otwell, Chief Clark decided to patrol
Grambling in order to monitor Blakemore’s activity. Chief Clark discovered
Blakemore’s patrol unit at his residence, and he was unable to locate Officer
Otwell within the Town of Grambling. Chief Clark drove past Blakemore’s
residence three times that evening, and each time Blakemore’s patrol vehicle
was parked at his residence. Chief Clark recalled that frost had begun to
accumulate on the car, indicating that it had been parked for an extended
time. Chief Clark was unable to state exactly how long he believed
Blakemore remained at his residence, but he noticed that a stalled vehicle
was on the main highway and neither Blakemore nor Otwell had called in to
dispatch to confirm that they had checked on the vehicle. At this point,
Chief Clark attempted to check Blakemore’s dispatch logs and daily police
reports. Chief Clark was unable to do so because Blakemore had failed to
produce an activity report for the prior two months. Chief Clark decided to
write up both Officer Otwell and Blakemore individually.
In his meeting with Officer Otwell, Otwell acknowledged that he had
become complacent with his work and needed to improve his effort. He also
admitted to not patrolling the town on November 22, 2011. Otwell
complained that it was hard to patrol the town by himself and that his daily
logs would show that when paired with any other supervising officers, his
work was satisfactory. When Chief Clark looked through the daily police 3 logs, he confirmed that Otwell was properly patrolling the town when paired
with other officers.
On November 29, 2011, Chief Clark met with Blakemore and
intended to give him a formal reprimand for his failure to properly patrol and
produce daily police logs on November 22. Chief Clark planned to give him
a two-day suspension without pay. However, when Chief Clark met with
Blakemore on November 29, Blakemore refused to accept a copy of the
formal reprimand and demanded an attorney be present. A predisciplinary
hearing was scheduled. On December 6, 2011, Blakemore was placed on
administrative leave pending a predisciplinary hearing. He received a letter
on December 7 providing notice of the impending hearing.
On January 6, 2012, Grambling conducted a predisciplinary hearing
regarding Blakemore. At the hearing, Daphne Mathis, the dispatcher on
duty on November 21, 2011, testified first. In her testimony, she confirmed
that Blakemore did not call in to dispatch for the entire shift. Additionally,
Mathis stated that while officers do occasionally go home, they call in before
going home and also call when they leave their home.
Next, Officer Otwell testified. In his testimony, he stated that he was
working on November 21, 2011, with Sergeant Blakemore, but he did not
see Blakemore patrolling the town during the shift. Officer Otwell said that
when on shifts with other officers, he sees these officers patrolling or
“running traffic.” He agreed that he consistently saw less of Blakemore on
shifts compared to other supervising officers with whom he had worked.
Otwell confirmed that if one of the two officers on duty does not patrol the
town, it places more work on the other officer and makes the shift more
difficult. 4 Chief Clark then testified and confirmed that Blakemore failed to
produce any daily police logs for the months of October and November.
Additionally, when looking at the dispatch logs of the dispatcher during
Blakemore’s shifts, Chief Clark noticed they were much shorter than shifts
of other officers. This indicated to Chief Clark that Blakemore was not
patrolling the town while on duty or providing adequate backup to officers,
because he was calling in incidents to dispatchers. Chief Clark also pointed
out that Blakemore would issue far fewer citations than other officers,
confirming that he was not patrolling the town. Chief Clark also testified
that during Blakemore’s suspension, he was supposed to report to be fitted
for a bulletproof vest. Blakemore failed to attend the fitting. Chief Clark
stated that he allows officers to go home briefly for bathroom breaks and
even to occasionally eat a meal, but they are expected to not stay at their
homes. Chief Clark characterized Blakemore’s habits as a “dereliction of
duty.”
Finally, Blakemore testified. He claimed that he did not know how
long would be an appropriate time to be at his home, he refused to provide a
definition of backup, and argued over what would be considered quickly
arriving at a crime scene. Blakemore admitted that he went to his house
every day while he was on duty. He claimed that he would not be at home
long, but refused to give a time limit as to how long he would stay. He said
that typically he would eat and watch television, or do some of his daily
officer reports, while at home. He also acknowledged that he would not
always contact dispatch and inform them that he was going home. He also
admitted he had not completed his daily police reports for the past two
months. He believed that as a supervisor he was not required to do reports, 5 though he did agree that none of the other supervisors had advised him he
was not required to write reports. He provided no explanation for what he
was doing or how long he was at his home on November 22, 2011.
Following the hearing, Chief Clark terminated Blakemore’s employment.
Following his termination, Blakemore appealed to the Mayor of
Grambling, Edward Jones, who reviewed the audiotapes of the hearing and
all the documents that were reviewed during the investigation. Mayor Jones
affirmed Chief Clark’s decision terminating Blakemore’s employment.
Mayor Jones noted Blakemore’s ineffectiveness as a supervising officer,
unwillingness to write daily reports, his extended trips to his home during
shifts, and not properly patrolling the town as reasons for termination.
On June 18, 2012, Blakemore filed a suit against Grambling. On
April 8, 2013, Blakemore’s initial counsel withdrew. On April 2, 2015,
Blakemore’s current counsel enrolled. Grambling filed a motion for
summary judgment on August 27, 2018. Blakemore filed a motion to strike
the defendant’s motion. The district court denied the motion to strike and
reset Grambling’s motion for summary judgment hearing to give Blakemore
the opportunity to file a proper opposition. Blakemore failed to file an
opposition. On December 7, 2018, Blakemore requested to continue the
hearing. The district court denied this, as he had waited until after the
deadline to file an opposition. On January 9, 2019, the district court granted
Grambling’s motion for summary judgment. On March 22, 2019,
Blakemore filed an appeal.
DISCUSSION
Blakemore seeks review of the district court’s grant of summary
judgment. Blakemore claims that he was not an at-will employee. As such, 6 Grambling needed cause to fire him. He contends that there was insufficient
evidence presented to terminate him for cause. He also argues that
Blakemore was not provided with due process of law prior to and during his
disciplinary proceedings pursuant to the Police Officer’s Bill of Rights.
Grambling asserts that Blakemore was an at-will employee and was
terminated for failing to perform the basic duties of his job. Grambling
states that Blakemore was provided multiple notices regarding the
complaints against him and could have explained his actions. Grambling
claims that he was provided notice of the charges against him, he was
provided a predisciplinary hearing, and was given an opportunity to appeal
his termination to Mayor Jones. After reviewing the files, Mayor Jones
affirmed Blakemore’s termination. Grambling urges that Blakemore was
provided all notices required by law.
A de novo standard of review is required when an appellate court
considers rulings on summary judgment motions, and the appellate court
must use the same criteria that governed the trial court’s determination of
whether summary judgment was appropriate. Davis v. Heniff Transp., LLC,
52,048 (La. App. 2 Cir. 5/23/18), 249 So. 3d 183. A court must grant a
motion for summary judgment if the motion, memorandum, and supporting
documents show there is no genuine issue as to material fact and that the
mover is entitled to judgment as a matter of law. La. C.C.P. art. 966 A(3).
A fact is material when its existence or nonexistence may be essential
to the plaintiff’s cause of action under the applicable theory of recovery.
Facts are material if they potentially ensure or preclude recovery, affect a
litigant’s ultimate success, or determine the outcome of the legal dispute.
J&L Oil Co. v. KM Oil Co., LLC, 51,898 (La. App. 2 Cir. 2/28/18), 247 So. 7 3d 147; Barfield v. Diamond Constr. Inc., 51,291 (La. App. 2 Cir. 4/5/17),
271 So. 3d 1211, writ denied, 2017-0751 (La. 9/5/17), 228 So. 3d 1205. An
issue is genuine if reasonable persons could disagree based on the evidence
presented. J&L Oil Co., supra.
The burden of proof rests with the mover. Nevertheless, if the mover
will not bear the burden of proof at trial on the issue that is before the court
on the motion for summary judgment, the mover’s burden on the motion
does not require him to negate all essential elements of the adverse party’s
claim, action, or defense, but rather to point out to the court the absence of
factual support for one or more elements essential to the adverse party’s
claim, action, or defense. The burden is on the adverse party to produce
factual support sufficient to establish the existence of a genuine issue of
material fact or that the mover is not entitled to judgment as a matter of law.
La. C.C.P. art. 966(D)(1).
Plaintiff was an at-will Employee
Under the Lawrason act, in a town with an elected chief of police, the
mayor does not have the authority to supervise and direct the administration
and operation of the police department. La. R.S. 33:404(A)(1). However, in
towns and cities where the police chief is appointed by the mayor, the mayor
is to be the ultimate authority in supervising and directing the administration
and operation of the police department.
Absent a specific contract or agreement establishing a fixed term of
employment, an employer is at liberty to dismiss an employee at any time
for any reason without incurring liability for the discharge. Quebedeaux v.
Dow Chemical Co., 2001-2297 (La. 6/21/02), 820 So. 2d 542; Mederos v. St.
Tammany Par. Govt., 2015-1602 (La. App. 1 Cir. 7/11/16), 199 So. 3d 30. 8 An at-will employee has no property interest in his or her employment. See
Mederos, supra. Rather than creating a property interest, Louisiana law
delegates to mayors the authority to fire an employee holding a position so
long as he is not a civil servant and ordinances do not provide otherwise.
Cabrol v. Town of Youngsville, 106 F. 3d 101 (5th Cir. 1997). The
Lawrason Act says nothing about why employment may be terminated, but
only specifies how employment may be terminated. Any ordinance merely
conditioning an employee’s removal on compliance with certain specified
procedures does not endow that employee with a property interest in his
employment. Cobb v. City of Harahan, 516 Fed. App’x 337 (5th Cir. 2013).
Internal personnel policies do not create contractual rights between
parties. Square v. Hampton, 2013-1680 (La. App. 4 Cir. 6/4/14) 144 So. 3d
88; Williams v. Delta Haven, Inc., 416 So. 2d 637 (La. App. 2 Cir. 1982).
Employee manuals, as well as company policies and procedures, do not
confer contractual rights upon employees nor create any exceptions to the
employment at-will doctrine. Mix v. Univ. of New Orleans, 609 So. 2d 958
(La. App. 4 Cir. 1992), writ denied, 612 So. 2d 83 (La. 1993); See also Wall
v. Tulane University, 499 So. 2d 375 (La. App. 4 Cir 1986), writ denied, 500
So. 2d 427 (La. 1987); Keller v. Sisters of the Incarnate Word, 597 So. 2d
1113 (La. App. 2 Cir. 1992). Employment at-will applies even to
government employees who are not protected by civil service provisions as
well as to private industry employees. Mederos, supra; Tolliver v.
Concordia Waterworks Dist., 98-00449, (La. App. 3 Cir. 2/10/99) 735 So.
2d 680, writ denied, 99-1400 (La. 7/2/99), 747 So. 2d 23.
Blakemore first contends that he was not an at-will employee and as
such he must be terminated with cause. Blakemore does not directly argue 9 that a contract existed which created a fixed term of employment, or that he
had a property interest in his employment. Instead, he argues that “The City
of Grambling’s Policy and Procedure Manual” precludes him from being
considered an at-will employee. Additionally, Blakemore urges that the
Police Officer’s Bill of Rights requirement of an investigation before
termination creates a burden not found in at-will employment. We find both
of these arguments to be without merit.
It is well settled that an employee manual does not negate an
employee’s at-will status. In Mix, the Fourth Circuit held that a grievance
procedure did not negate the fact that a University employee was an at-will
employee. The court reasoned that Mix was an unclassified employee not
protected by civil service law and was an at-will employee. Furthermore, in
Keller this Court also held that an employment personnel manual was not an
employment contract. There, we reasoned that a hospital’s personnel
manual did not establish a fixed term of employment which would have
vitiated Keller’s at-will employment. As such, she was an at-will employee.
Blakemore cites Reyes-Silva v. Drillchem Drilling Sols., LLC, 2010-
1017 (La. App. 3 Cir. 2/2/11), 56 So. 3d 1173, writ denied, 2011-0732 (La.
5/20/11), 63 So. 3d 983, to support his argument that he was not an at-will
employee. However, Reyes is distinguishable in that the plaintiff’s
employment agreement required just cause for termination in the first six
months. In Reyes, the Third Circuit reasoned that although the contract did
not guarantee employment for a fixed term past the initial six months, the
fact that just cause was required for termination during the first six months
comported closer to a fixed-term employment than at-will employment.
10 Here, Blakemore’s employment did not have any conditional period
with which his employment could be terminated for just cause. The “City of
Grambling Policy and Procedure Manual” lists expectations of its employees
and even lists reasons for termination, but it in no way states that the officers
are not at-will employees. As stated earlier, Grambling is a Lawrason Act
town. More specifically, Grambling is a Lawrason Act town in which the
mayor appoints the chief of police. As such, the police officers are at-will
employees and serve directly under the mayor. Officers under the Lawrason
Act are not civil service employees and do not receive protections that civil
service employees receive. The fact that Grambling has an employee
manual with certain guidelines that an employee is supposed to meet does
not negate this fact.
Blakemore next contends that the Police Officer’s Bill of Rights does
not support Grambling’s assertion that he was an at-will employee. This is
also meritless. We agree with the analysis of the Federal Courts that the
Police Officer’s Bill of Rights does not vitiate at-will employment. In
Madison v. City of Patterson, 18-0175, 2018 WL 4624185, (W.D. La.
9/26/18), the court held that an officer in a Lawrason Act town was an at-
will employee. Specifically, the court reasoned that the Police Officer’s Bill
of Rights did not provide the officer with a property interest in his job. The
court also pointed to the fact that the officer did not have a contract for a
definite term or that the employer agreed only to fire him for cause.
Therefore, the officer was an at-will employee.
Here, the fact that Blakemore received the benefit of the Police
Officer’s Bill of Rights does not create the necessary property interest for an
Officer to be considered a term employee. Blakemore was employed in a 11 Lawrason Act town and his employment was directly controlled by the
mayor. Blakemore did not have a contract, was not a termed worker, nor
was it expressed to him that he could only be fired for cause. Therefore, we
find that no issue of material fact exists as to whether Blakemore was an at-
will employee.
Due Process and Police Officer Bill of Rights
According to La. R.S. 40:2531, whenever a police employee or law
enforcement officer is under investigation:
1) The police employee or law enforcement officer being investigated shall be informed, at the commencement of interrogation, of the nature of the investigation and the identity and authority of the person conducting such investigation, and at the commencement of any interrogation, such officer shall be informed as to the identity of all persons present during such interrogation. The police employee or law enforcement officer shall be allowed to make notes.
Additionally, the Officer being questioned must be given 30 days to
secure representation, during which time all questioning shall be
suspended. La. R.S. 40:2531(B)(4)(b)(i).
As long as the termination does not violate any statutory or
constitutional provisions, the employer is not liable. Jackson v. Mayo,
42,970 (La. App. 2 Cir. 2/13/08), 975 So. 2d 815, writ denied, 2008-0553
(La. 4/25/08), 978 So. 2d 371; Clark v. Acco Systems Inc., 39,532 (La. App.
2 Cir. 4/6/05), 899 So. 2d 783. The at-will doctrine provides a shield to
employers so significant that only a few instances provide exception to the
protection. Jackson, supra; Clark, supra. In fact, even an employer’s
failure to follow a grievance procedure does not alter the essential nature of
at-will employment. Jackson, supra; Keller, supra.
12 Blakemore’s next argument is that the predisciplinary hearing
violated his due process rights because he was not given proper notice
of the allegations before him. We also find this argument to be
meritless.
It is worth noting once again that Blakemore was not a civil service
employee. Since he was not a civil service employee, he was not entitled to
the due process granted under La. Const. art. X, § 8, which states that “no
person who has gained permanent status in the classified state or city service
shall be subjected to disciplinary action except for cause expressed in
writing.” However, under the Police Officer’s Bill of Rights, Blakemore
was entitled to an attorney at the investigation hearing and at the
commencement of interrogation he was to be informed of the nature of the
investigation. Blakemore cites Knight v. Dep’t of Police, 619 So. 2d 1116
(La. App. 4 Cir. 1993), writ denied, 625 So. 2d 1058 (La. 1993) as an
example of what is appropriate notice to an officer. In Knight, the Fourth
Circuit stated that “R.S. 40:2531 does not require that the law enforcement
officer know the exact charges that may be brought against him. All that is
required is that the investigating agency inform the police officer ‘of the
nature of the investigation.’”
According to the record, on December 7, 2010, an officer from the
Grambling Police Department hand delivered a letter outlining the
investigation against Blakemore. The letter states that Blakemore is under
investigation for abandoning his shift, going to his house, failing to patrol
Grambling while on duty, failing to complete and turn in log sheets showing
his actions on duty, and failing to report to scheduled meetings including
fitting for new vests. Not only did Blakemore receive a copy, but the record 13 indicates that Blakemore’s counsel received the letter. Therefore,
Blakemore was properly notified of the investigation against him.
Blakemore was properly terminated based on the Police Officer’s Bill
of Rights and the “City of Grambling Policy and Procedure Manual.” First,
Blakemore received notice and had an attorney present at the predisciplinary
hearing. Then, at the January 6 hearing, Daphne Mathis testified that
Blakemore did not call in to dispatch at any point on November 21, 2011.
Officer Otwell testified that he consistently saw less of Blakemore while on
shifts than other supervising officers. Otwell acknowledged that
Blakemore’s inconsistent patrolling of the city made his job more difficult.
Chief Clark testified Blakemore’s inactivity on November 21 concerned him
and he therefore patrolled the town the next day to monitor Blakemore.
Chief Clark drove past Blakemore’s house on three separate occasions and
each time found Blakemore’s police car parked in his front yard. Chief
Clark stated that the vehicle had been there long enough for frost to
accumulate on the windows. Chief Clark also stated that Blakemore had
failed to turn in a daily log for two months and that the activity sheets of the
officers that Blakemore supervised were much shorter, indicating that these
officers were not properly monitoring the city. Blakemore also consistently
wrote fewer tickets than other patrolling officers. After Chief Clark brought
these incidents to Blakemore’s attention and suspended him, Blakemore
skipped a bulletproof vest fitting. Chief Clark characterized these incidents
as a dereliction of duty.
Perhaps the most damaging evidence presented at the hearing was the
testimony of Blakemore himself. He openly admitted to returning home
daily and not notifying dispatch of his location. Additionally, Blakemore 14 could not remember the last time he wrote a ticket, and acknowledged that
he was not turning in daily activity logs. “The City of Grambling’s Policy
and Procedure Manual” states that reporting defective work and
insubordination are grounds for disciplinary action or termination.
Blakemore’s behavior falls into both of these categories and he was
therefore terminated, after receiving notice of a disciplinary hearing,
receiving a disciplinary hearing, and appealing directly to the mayor, thus
meeting the requirements of La. R.S. 40:2531 and his employment manual.
Therefore we find that no issue of material fact exists as to whether
Grambling violated Blakemore’s due process.
CONCLUSION
For the reasons outlined above, we affirm the district court’s
judgment, which held that Blakemore was properly terminated. Costs
associated with this appeal are assessed to the appellant.
AFFIRMED.