Louisiana Voice

The administration of Gov. Bobby Jindal apparently has a double standard in the manner in which it handles complaints of sexual harassment against appointees.

When Kelli Suire accused her former boss, commissioner of the Louisiana Office of Alcohol and Tobacco Control Murphy J. Painter, of sexual harassment, it mattered little to Jindal and then-Chief of Staff Stephen Waguespack that she had already recanted those allegations. Painter was immediately called to the governor’s office and summarily fired from his job.

But when Painter’s successor, Troy Hebert, was accused of sexual harassment—and other transgressions—by an ATC agent nearly two years ago, it was the agent, Randall Kling, who was fired and the Jindal administration then threw its financial and legal resources behind defending Hebert, who remains employed.

But Kling may yet have the last word in what has now turned into a legal battle between him and the Department of Revenue, the agency under whose budget ATC is funded, but now the issue is retaliation against his right of free speech.

The First Circuit Court of Appeal on Jan. 25 overturned a lower court decision which found no right of action by Kling and which dismissed his lawsuit with prejudice.

Kling and other ATC employees initially submitted a complaint to former Revenue Secretary Cynthia Bridges about what they considered to be offensive behavior on the part of Hebert on March 10, 2011. Then on March 16, 22 and 25, Kling submitted additional complaints to Dee Everett, director of human resources at Revenue.

Among his complaints were claims of threats, hostile work environment, systematic intimidation and discrimination, favoritism, humiliation, harassment, inefficiency and morale problems at ATC.

On March 30, 2011, Kling was terminated and on May 26, he filed suit against the Department of Revenue, claiming that he had been fired in retaliation for his complaints regarding Hebert and his department.

The department filed objections of no cause of action, claiming that Kling’s allegations failed to set forth a cause of action for a free speech retaliation claim because his complaints did not involve “matters of public concern,” but rather were merely the complaints of an employee against his superior that were not entitled to constitutional protection.

Kling subsequently filed an amended petition in which he set forth 24 alleged violations of agency policy, procedure and law, including allegations that Hebert:

• Compromised the Civil Service Performance Planning and Review System;

• Operated the ATC in total disregard of State Civil Service rules;

• Used state resources for personal and political gain and in furtherance of his plan to seek elective office;

• Attempted to undermine ethics laws by attempting to form a non-profit entity whereby funding could be solicited and received from the alcohol industry which is regulated by ATC, and boasting that the alcohol industry would gladly donate funds to furnish his proposed new office suite at ATC;

• Schemed to build himself a new office in such a manner as to avoid legislative and Division of Administration oversight;

• Harassed employees who cooperated with the investigations conducted by the Office of Inspector General and the Louisiana State Police concerning the conduct of former commissioner Painter;

• Repeatedly violated sensitive computer policies (a charge for which Painter was indicted and is scheduled to stand trial on April 22), which violations had the potential to jeopardize sensitive law enforcement initiatives and compromised the safety of ATC agents;

• Was guilty of misconduct that threatened the ability of ATC to properly perform its duties;

• Subjected ATC employees to sexual harassment, gender discrimination, humiliation and systematic employment practices that placed ATC agents in potential danger, and

• Was responsible for a mass exit of qualified and experienced ATC agents.

The state, choosing to eschew the attorney general’s office in defending Hebert, instead contracted with outside counsel E. Wade Shows who promptly argued that Kling was attempting to assert a claim for retaliatory discharge due to complaints that were not made by him individually, but by at least 11 other employees of ATC.

It might appear somewhat unusual to argue that a single employee had no cause of action—because his claims were based on the complaints of 11 co-workers—since that argument would seem to acknowledge that agency problems were not confined to a single employee but instead were experienced by several others as well and that problems were agency-wide in nature.

Shows also argued that Kling’s amended petition failed to state a viable cause of action as the complaints he made were simply that of an “unhappy employee” and not a “matter of public concern,” and therefore not constitutionally protected.

Apparently the trial court judge, A. William Morvant, agreed.

Morvant, at oral arguments held on Jan. 23, 2012, refused to allow Kling’s attorney to argue on the basis that the opposition brief was untimely and also refused to allow Kling to testify on the exception of no right of action, although he did allow Kling’s testimony to be proffered (offered into evidence).

Morvant subsequently ruled that Kling’s petition did not set forth a cause of action for retaliatory discharge because none of the allegations rose to the level of public concern, but were merely workplace criticisms by Kling in his role as an employee and not as a concerned citizen (see: Kelli Suire’s complaint against Painter for the contrast in the manner in which similar complaints are handled by the governor’s office—LouisianaVoice, Feb. 6 post https://louisianavoice.com/2013/02/06/emerging-claims-lawsuits-could-transform-murphy-painter-from-predator-to-all-too-familiar-victim-of-jindal-reprisals/).

Morvant signed his judgment a year ago, on Feb. 1, 2012, sustaining the exception of no right of action, thereby dismissing Kling’s lawsuit with prejudice (meaning final judgment as opposed to without prejudice which means the matter may be revisited).

Kling appealed and the First Circuit ultimately disagreed with Morvant—and Shows—and reversed Morvant’s ruling late last month.

The First Circuit, which appeared to offer a lesson in law to Morvant, said, “…In order to have an interest in asserting a retaliatory discharge claim, Mr. Kling does not have to be a direct recipient of the conduct complained of…”

“Mr. Kling claims that he was terminated from his position in retaliation for the exercise of his constitutionally protected right of free speech. His interest in prosecuting this lawsuit is not as a victim of harassment or discrimination, but as an employee who was fired in retaliation for complaining about Mr. Hebert’s conduct,” the appellate court ruling says.

“Thus, the fact that he may not individually have been a victim of some of the complaints in the amended petition, such as gender discrimination, is of no moment in determining whether he has a right of action to assert a retaliatory discharge claim.

“We find that (ATC) failed to meet its burden of establishing that Mr. Kling had no interest in prosecuting this retaliation claim….Therefore, we find that the trial court committed legal error in granting the exception of no right of action.”

The ruling then went on to address a little something contained in the First Amendment—the right of free speech:

“Article I, Section 7 (of the U.S. Constitution), on which Mr. Kling’s lawsuit is based, gives Louisiana citizens the right to speak, write, and publish their sentiments on any subject. It is well settled that an employee of a public entity may not be discharged for exercising his constitutionally protected right to freedom of expression despite his at-will status.

“The law has recognized that there are some types of speech, which by their very nature, address matters of public concern,” the ruling continued. “For instance, the disclosure of misbehavior by public officials is a matter of public concern and is therefore entitled to constitutional protection.

“These allegations of unethical and perhaps illegal conduct on Mr. Hebert’s part clearly are matters of public concern.

“We find that Mr. Kling’s petition does set forth a cause of action for retaliatory discharge and reverse the trial court’s judgment sustaining the exception of no cause of action and dismissing this lawsuit with prejudice.

“The judgment sustaining the peremptory exception raising the objection of no cause of action is also hereby reversed.

“This matter is remanded to the trial court for proceedings consistent with this opinion,” the ruling said, adding that all costs of the appeal were assessed against the Department of Revenue.