Joseph Moreau, Jr. v. St. Landry Prsh Fire Dist No ( 2020 )

Case: 19-30767 Document: 00515374099 Page: 1 Date Filed: 04/07/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 19-30767
Fifth Circuit
FILED
April 7, 2020
JOSEPH LARRY MOREAU, JR., Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
ST. LANDRY PARISH FIRE DISTRICT NO. 3; WILFRED KINNERSON,
individually ; in his official capacity; DONALD ROBINSON, individually ; in
his official capacity; GREG DOUCET, individually ; in his official capacity;
TERRI COURVELLE, individually ; in his official capacity; FRANK
GUIDROZ, individually ; in his official capacity; PAMELA JACKSON,
individually ; in her official capacity; BOARD OF COMMISSIONERS ST.
LANDRY PARISH FIRE DISTRICT NO. 3; MATTHEW RABALAIS,
Individually and in his Official Capacity as Chief of St. Landry Fire
Protection District No. 3,
Defendants – Appellees
Appeal from the United States District Court
for the Western District of Louisiana
Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
PER CURIAM:*
Larry Moreau, Jr., a former fire captain, sued St. Landry Fire Protection
District No. 3 (“District 3”) and seven individual members of its Board of
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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Commissioners (the “Board”) under 42 U.S.C. § 1983, alleging he was fired in
retaliation for exercising his First Amendment rights and without due process.
The district court granted summary judgment in favor of Defendants. We
AFFIRM.
I. BACKGROUND
In May 2017, Moreau was accused of refusing to participate in a fire
training exercise. At a pre-disciplinary hearing before the Board, Moreau
explained that he did not participate because of an on-the-job injury that he
failed to report. The Board voted to issue Moreau a formal letter of reprimand,
but Chairman Wilfred Kinnerson would have gone further—he thought
Moreau should have been fired over the incident. This created a “personal
problem” between Moreau and Chairman Kinnerson.
Months later, the actions of an unrelated local school board caught media
attention. When a teacher questioned the members of the Vermillion Parish
School Board about a potential raise for the superintendent, the school board
had police remove her from the meeting, and the teacher was handcuffed and
taken to jail. One of Moreau’s Facebook friends posted a local news story about
the school board incident, and Moreau posted the following comment:
all of this going on with this poor teacher being treated so unfairly
makes one thing perfectly clear… These “boards” everywhere,
ruled by good old boy politics need to be dissolved ASAP..!! We have
the same exact problem at our fire department… A board of
clueless idiots making the decisions that affect many including the
very employees who actually do the job.. It’s a joke.. I hope this
teacher makes them pay…. and pay big time.!!
Moreau deleted the post after Candice Elkins, secretary to District 3’s
Board, responded to it. Then he initiated the following private message
exchange with Elkins:
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[MOREAU:] Not trying to be ugly here so don’t get all wound up…
But if you’re looking at my page and trying to Police what I say
because you happen to be on our Board than [sic] I will have to
delete you. I didn’t call all of you idiots. You know exactly the ones
I’m talking about. I’m not stupid, I spent the better part of last
summer having to literally fight for my job after working my ass
off there for 27 damn years.. Also having to actually sit at a board
meeting and explain myself after providing 2 different doctors [sic]
excuse as to why I couldn’t work that day..!! Fucking
embarrassing, humiliating and wrong.. All because of one IDIOT
on the board. !! I did not deserve that!! Remember it was y’all who
hired that nut four years ago… it was y’all who sat back and did
nothing while he practically ruined our department. It was y’all
who gave him a blank check, allowed him to treat the men like shit
(especially the older ones like myself) and then finally at the end
after we were broke did y’all wake up. All this stuff going on with
this teacher in Abbeville shows that this good old boy political crap
is for the birds and I can’t wait to get away from it… Going in the
drop October 31st of this year… I will never work a political job
again that’s for certain..
[ELKINS:] Dude… didn’t look up your page to police anything.
Scrolling through fb this morning and there it was for any of your
friends to see. Just to clarify, I’m not on the board so I didn’t take
offense. I work for the board, I happen to love Fire District 3, and
will work with the board and the entire staff of firefighters to make
it great again! That’s my goal.
[MOREAU:] Well, I’ve seen an awful lot of dirty s[t]uff go on over
there in 27 years..!! Just tired of it. Ready to go do something else.
And for the record I do think y’all are on the right track... If they
don’t make Rabalais chief, I might just outright quit.. He’s
definitely without a doubt the right man for the job… But this
board has a history in the past of not always doing the “right”
things…
[ELKINS:] The Board, and all of us affiliated with FD3, have
worked tirelessly in the last year to turn things around. Some of
us prefer to look towards the future rather than dwell on the past.
It’s a different board now and they are trying hard to do the right
thing. You misspoke when you referred to them as clueless idiots,
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but that’s just my opinion. You probably should not speak
negatively, nor post negatively on social media, about the agency
which has provided your livelihood for the past 27 years, no matter
how tired you are of it. Just offering my 2 cents, for what it’s worth.
Have a good weekend!
[MOREAU:] I’m sorry but Kennerson [sic] is a clueless idiot who
should not even be allowed near a board of any kind that makes
decisions.. Don’t think I misspoke one bit. And it’s not so easy to
just forget the past when you’ve just given up 27 years of your life
seeing and living it. It has been a prison at times not a livelihood…
and my sentence is almost up. At this point I’m just hoping my last
few years are a little more pleasant than the first 27 have been..
[MOREAU:] I really don’t think y’all realize just how bad the moral
[sic] of the men is over there..!!! It’s literally completely in the
toilet.!! Hopefully that’ll get better as well..
Elkins complained about Moreau’s comments, and Moreau was given
written notice that he would be investigated for posting “disparaging remarks”
about District 3. Moreau was questioned by fire district Chief Rabalais, and
was later given notice of a pre-disciplinary hearing. 1 At the hearing, Moreau
defended his Facebook post on the grounds that he was referring to “older
boards, not the current board” when he called them “clueless idiots.” The Board
unanimously voted to fire Moreau.
1 The notice informed Moreau that his post violated District 3’s social media policy,
and that he may face disciplinary action for the following violations listed in the state civil
service law, La. Rev. Stat. § 33:2500:
(3) The commission or omission of any act to the prejudice of the departmental service or
contrary to the public interest or policy.
(5) Conduct of a discourteous or wantonly offensive nature toward the public, any municipal
officer or employee; and, any dishonest, disgraceful, or immoral conduct.
(14) The willful violation of any provision of this Part or of any rule, regulation, or order
hereunder.
Defendants note that the notice should have actually cited La. Rev. Stat. § 33:2560—the
section of the civil service law that applies to small municipalities and fire districts.
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Moreau sued District 3, alleging he was fired in retaliation for exercising
his First Amendment rights. He later added seven individual members of the
Board, and amended his complaint to assert procedural due process claims
under federal and state law. The district court granted Defendants’ motion for
summary judgment, holding that (1) Moreau’s speech was not a “public
concern” and was not entitled to First Amendment protection; and (2) his
procedural due process claims are time-barred. Moreau timely appealed.
II. DISCUSSION
We review the district court’s grant of summary judgment de novo. 2
Summary judgment is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” 3
1. First Amendment Claim
To establish a First Amendment retaliation claim, Moreau must show
that (1) he suffered an adverse employment action; (2) he spoke as a citizen on
a matter of public concern; (3) his interest in speaking outweighed District 3’s
interest in promoting efficiency; and (4) his speech motivated District 3’s
adverse action against him. 4 If Moreau did not speak on a matter of public
concern, the inquiry ends. 5
We determine whether a public employee’s speech relates to a matter of
public concern by weighing the “content, form, and context of a given
statement, as revealed by the whole record.” 6 In “mixed” cases—those
2 Uptown Grill, L.L.C. v. Camellia Grill Holdings, Inc., 920 F.3d 243, 247 (5th Cir.
2019).
FED. R. CIV. P. 56(a).
3
Gibson v. Kilpatrick, 838 F.3d 476, 481 (5th Cir. 2016). If the speech does not address
4
a matter of public concern, a court need not proceed to the third and fourth steps.
5 Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
6 Connick v. Myers, 461 U.S. 138, 147–148 (1983).
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involving both private and public concerns—we determine whether the private
concerns predominate. 7 Weighing these factors, we conclude that Moreau’s
Facebook post was predominately of private concern.
“Speech involves matters of public concern when it can be fairly
considered as relating to any matter of political, social, or other concern to the
community, or when it is a subject of legitimate news interest; that is, a subject
of general interest and of value and concern to the public.” 8 Speech does not
relate to a public concern when it involves “solely personal matters or strictly
a discussion of management policies that is only interesting to the public by
virtue of a manager’s status as an arm of government.” 9 If, however, “releasing
the speech to the public would inform the populace of more than the fact of an
employee’s employment grievance,” 10 it might be public.
First, although Moreau’s post addressed some matters of public
concern—the Vermillion Parish School Board incident had garnered local
media attention—his statement that his own employer’s Board is made up of
“clueless idiots” is more “akin to an internal grievance,” 11 and “convey[s] no
information at all other than the fact that a single employee is upset with the
status quo.” 12
Second, the form of his speech (a public social media post) weighs in favor
of a finding of public concern—it was accessible to the public outside of District
3’s chain of command.
Third, however, the context of his speech weighs against a finding that
Moreau spoke predominately on a matter of public concern. Speech “made
7 Gibson, 838 F.3d at 485.
8 Lane v. Franks, 573 U.S. 228, 241 (2014) (citation and quotation marks omitted).
9 Branton v. City of Dallas, 272 F.3d 730, 740 (5th Cir. 2001).
10 Id. (quotation marks omitted).
11 Graziosi v. City of Greenville, 775 F.3d 731, 738 (5th Cir. 2015).
12 Connick, 461 U.S. at 148.
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solely in furtherance of a personal employer-employee dispute” 13 isn’t public—
and generally, “an employee speaks in furtherance of his personal employer-
employee dispute when he discusses personnel matters directly impacting his
job or criticizes other employees or supervisors’ job performance.” 14 Moreau
was admittedly angry with the Board for accusing him of refusing to
participate in a fire training exercise, and for the way they treated him during
the investigation and hearing. He made the Facebook post in the context of his
private frustration with the Board’s management and decision-making, and a
“personal problem” he had with its Chairman.
Although Moreau began his Facebook post by commenting on a
publicized school board incident, his speech “devolved” into his personal
criticism of District 3’s Board. 15 His statement was “primarily motivated by
and primarily addressed [his] displeasure” 16 with District 3’s Board and the
way it operates. On balance, Moreau’s speech was predominately of private
concern, and the district court did not err in granting summary judgment.
2. Procedural Due Process Claims
Moreau brought federal and state due process claims, alleging he was
fired “for various, ill-defined reasons in addition to his Facebook post.” The
district court concluded that these claims are time-barred. Even assuming
these claims are timely, they fail on the merits.
13 Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 187 (5th Cir. 2005).
14 Id. at 187–88.
15 See, e.g., Graziosi, 775 F.3d at 738 (Police sergeant’s Facebook post criticizing the
department’s failure to send a representative to a fellow officer’s funeral was not public in
nature because it “devolved into a rant” attacking the chief’s leadership style and intra-
department decision-making.).
16 Id. at 739 (“[W]e cannot allow the mere insertion of a scintilla of speech regarding
a matter of public concern, to plant the seed of a constitutional case.”) (internal citations and
quotations omitted).
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A public employee “is entitled to oral or written notice of the charges
against him, an explanation of the employer’s evidence, and an opportunity to
present his side of the story.” 17 “To require more than this prior to termination
would intrude to an unwarranted extent on the government’s interest in
quickly removing an unsatisfactory employee.” 18 Here, Moreau received notice
of his investigation and the pre-disciplinary hearing. He was informed of the
possible bases for discipline—his Facebook post and violations of the civil
service law—and was given a hearing before the Board, where he was able to
respond and present his side of the story. Finally, he had the opportunity to
appeal the Board’s decision to the Civil Service Board.
Moreau argues that the Louisiana Firefighters’ Bill of Rights, 19 which
imposes additional procedural requirements on fire departments attempting
to discipline their employees, can support a federal or state due process claim.
But “the process which is due under the United States Constitution is that
measured by the due process clause, not that called for by state regulations.” 20
The failure to apply certain “procedural protections called for by state law or
regulation does not of itself amount to a denial of due process.” 21 And because
that statute does not create a private right of action for damages, Moreau
cannot bring § 1983 and state law claims for alleged violations of it.
17 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985).
18 Id.19 La. Rev. Stat. § 33:2181-2186.
20 Giovanni v. Lynn, 48 F.3d 908, 912 (5th Cir. 1995) (citation omitted); see also
Dearman v. Stone Cty. Sch. Dist., 832 F.3d 577, 584 (5th Cir. 2016) (“The School District may
have violated state law when denying Dearman an official nonrenewal hearing. Given,
however, that Dearman did receive both notice and an opportunity to respond, this state-law
violation does not also amount to a violation of federal due process.”).
21 Id.8
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III. CONCLUSION
For these reasons, the district court did not err in granting summary
judgment. The district court’s judgment is AFFIRMED.
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