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Ray v. City of Bossier City10/24/2003
t any employer who engages in a practice prohibited by Subsection A of this Section. If the court finds the provisions of Subsection A of this Section have been violated, the plaintiff may recover from the employer damages, reasonable attorney fees, and court costs.
We are dealing with constitutionally protected activities. Therefore, we find that the State Civil Service Commission does not have exclusive jurisdiction and plaintiffs need not have first exhausted their claims before the Board prior to filing suit in district court. We also note that the proper procedural vehicle to raise the issue of failure to exhaust administrative remedies would have been via an exception of prematurity pursuant to La. C.C.P. art. 926 A(1). However, defendants failed to employ such procedure. Therefore, the City's claim regarding Ray and Patten's failure to exhaust administrative remedies is without merit.
Conclusion
For the foregoing reasons, we AFFIRM the trial court's grant of summary judgment in favor of Michael Halphen, James Hall, and David Jones. We affirm the grant of summary judgment as to all defendants on the equal protection claim; however, we REVERSE the trial court's grant of summary judgment in favor of Chief Dison and the City of Bossier City on the other claims. Judgment of the trial court is AFFIRMED IN PART AND REVERSED IN PART. Costs are assessed equally between plaintiffs and the City of Bossier City.
MOORE, J., dissenting.
I concur in the majority opinion insofar as it affirms the summary judgments in favor of James D. Hall, Michael Halphen, and David Jones. I also concur in the majority's dismissal of the plaintiffs' claims under the "Whistleblower" statute, La. R.S. 23:967, as well as their claims of equal protection violations, La. Const. Art. 1, § 3.
I respectfully dissent, however, from the reversal of the remainder of the summary judgment. Upon de novo review, I find no genuine issue of material fact to support the claims that the City of Bossier City and Daniel Dison violated the plaintiffs' freedom of expression or constructively discharged them. I also find that the plaintiffs failed to exhaust their civil service remedies. I would affirm the summary judgments in toto.
As a procedural matter, majority's expansive treatment of the appellate record is plainly wrong. A mere two days before the scheduled hearing on the motions for summary judgment, the plaintiffs filed a "Motion for Extension to Respond to Defendants' Summary Judgment Motions." In my view, the district court properly denied this motion as untimely under La. C.C.P. art. 966 and Rule 9.9 (b), URDC. However, because of various factors to which the majority alludes, the district court gave plaintiffs' counsel an additional eight days (until November 22, 2002) to file an opposition memorandum but specified that no counter-affidavits would be admitted. When counsel filed their memorandum on November 22, they attached 15 additional exhibits. Many of these were depositions not already in the record by attachments to timely motions. On the defendants' motion, the district court struck these attachments.
Considering that the suit had been pending for 18 months, some 18 depositions had been taken, and the motion for summary judgment had been filed nearly a month before November 22, I would find that the district court did not abuse its discretion in striking these attachments.
In order to circumvent this clearly appropriate exercise of the district court's discretionary power, the majority revises the plaintiffs' motion for extension of time as a motion for continuance, but the plaintiffs never filed any such motion. The majority
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