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Ray v. City of Bossier City10/24/2003
to this action. Complete statements from these parties had been submitted by defendants as part of the IA report. Additionally, defendants had submitted different excerpts from these same depositions in support of their motions for summary judgment.
Under these circumstances, the trial court clearly abused its discretion in denying the motion. Thus, because we review summary judgment rulings de novo, we will order that the trial court record be supplemented by plaintiffs' exhibits filed in this court.
Constructive Discharge, Freedom of Expression, and Louisiana Whistleblower Act
Ray and Patten contend that their respective resignation and retirement were not voluntary, but coerced. Therefore, they argue they were "constructively discharged" in retaliation for engaging in protected acts. We will discuss plaintiffs' constructive discharge, freedom of expression, and Louisiana "Whistleblower" claims.
To recover damages for constructive discharge, a plaintiff must prove that the employer intended to and deliberately created such intolerable working conditions that the employee was forced into involuntary resignation. (Emphasis added). Robinson v. Healthworks International, L.L.C., 36,802 (La. App. 2d Cir. 01/29/03), 837 So. 2d 714, writ denied, 03-0965 (La. 05/16/03), 843 So. 2d 1120; Plummer v. Marriott Corp., 94-2025 (La. App. 4th Cir. 04/26/95), 654 So. 2d 843, writ denied, 95-1321 (La. 09/15/95), 660 So. 2d 460. Further, the trier-of-fact must find that the conditions were so severe that a reasonable person in the employee's shoes would have felt compelled to resign. Id. The burden is on the employee to prove constructive discharge. Plummer, supra; Boze v. Branstetter, 912 F. 2d 801 (5th Cir. 1990).
Under Louisiana's "Whistleblower Statute," an employer may not retaliate against its employees who advise an employer of violations of law. La. R.S. 23:967. This whistleblower statute provides:
A. An employer shall not take reprisal against an employee who in good faith, and after advising employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(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.
C. For the purposes of this Section, the following terms shall have the definitions ascribed below:
(1) "Reprisal" includes firing, layoff, loss of benefits, or any discriminatory action the court finds was taken as a result of an action by the employee that is protected under Subsection A of this Section; however, nothing in this Section shall prohibit an employer from enforcing an established employment policy, procedure, or practice or exempt an employee from compliance with such. (Emphasis added).
The whistleblower statute does not define "employer;" however, the term "employer" was precisely defined by Louisiana Employment Discrimination Law to require receipt of services by the employee in exchange for compensation to him. La. R.S. 23:302(2); Langley v. Pinkerton's Inc., 220 F. Supp. 2d 575 (M.D. La. 09/04/02). Specifically, "employer" is defined as "a person, association, legal or commercial entity, the state, or any state agency, board, commission, or political subdivision of the state receiving services from an employee and, in return, giving compensation of any kind to an employee." La. R.S 23:302(2). (Emphasis added). Courts have interpreted Section 23:302(2)'s definition of "employer" to ap
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