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Ray v. City of Bossier City10/24/2003
ply in cases where employment status is at issue. Jackson v. Xavier University of Louisiana, 2002 WL 1482756 (E.D. La. 2002), citing Jones v. JCC Holding Co., 2001 WL 537001 (E.D. La. 2001).
In determining whether an employment relationship exists in other contexts, jurisprudence of this state has uniformly held that the most important element to be considered is the right of control and supervision over an individual. Savoie v. Fireman's Fund Ins. Co., 347 So. 2d 188 (La. 1977); Cassey v. Stewart, 31,437 (La. App. 2d Cir. 01/20/99), 727 So. 2d 655, writ denied, 99-0811 (La. 04/30/99), 743 So. 2d 209; Fuller v. U.S. Aircraft Ins. Group, 530 So. 2d 1282 (La. App. 2d Cir. 1988), writ denied, 534 So. 2d 444 (La. 1988), cert. denied, 490 U.S. 1046, 109 S. Ct. 1954, 104 L. Ed. 2d 424 (1989).
An employee of a public entity may not be discharged for exercising his First Amendment right to freedom of expression despite an at-will employment status. Cabrol v. Town of Youngsville, 106 F. 3d 101 (5th Cir. 1997); Thompson v. City of Starkville, Miss., 901 F. 2d 456 (5th Cir. 1990); Brawner v. City of Richardson, Tex., 855 F. 2d 187 (5th Cir. 1988); see also La. R.S. 42:1169. In order to prevail in a claim of retaliation, one must show that his speech was constitutionally protected, i.e., that it involved a matter of public concern; that his interest in commenting on the matters of public concern outweighs the public employer 's interest in promoting efficiency; and that his speech was a motivating or substantial factor in the termination decision. (Emphasis added). Cabrol, supra; Thompson, supra.
In light of jurisprudence and La. R.S. 23:302(2)'s definition of "employer," we agree with the trial court's finding that Halphen (as a Public Information Officer), Hall (as a city attorney), and Jones (as a Bossier City councilman) were not Ray and Patten's employers. Halphen, Hall, and Jones provided neither compensation nor benefits to plaintiffs. See Onyeanusi v. Times-Picayune Publishing Corp., 485 So. 2d 622 (La. App. 4th Cir. 1986). These three defendants had neither power of control nor power of dismissal over Ray or Patten. See Cassey, supra. Jones complained that plaintiffs were harassing him and the IA investigation ensued; Halphen provided the IA investigation with information concerning plaintiffs; and Hall gave Chief Dison a legal opinion that Ray and Patten should be fired. However, Jones, Halphen, and Hall had no control over the IA investigation or over any employee within the Bossier City Police Department. The record contains nothing to show that these parties did anything other than exercise their freedom of expression.
Unlike the other three defendants, Chief Dison and Bossier City clearly had the right of control and supervision over Ray and Patten. In exchange for the services received, Bossier City provided compensation to these officers. See La. R.S. 23:302(2). Chief Dison had the power to employ or terminate them from the Bossier City Police Department. See Savoie, supra; Cassey supra. For these reasons, Chief Dison and Bossier City were Ray and Patten's "employer."
Plaintiffs were given an ultimatum and a minimum period of time to decide. Whether theirs was a "voluntary" decision is a genuine question of fact to be decided after evaluation of all the evidence. While it appears to have been a free choice made by Ray and Patten, there was also no real alternative. Plaintiffs claim "they were told that the decision to terminate had been made" prior to Chief Dison offering the choice. The motivation and intent of the parties are questions of credibility which should not be determined summarily.
According to Chief Dison's affidavit, his deci
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