(EDITOR’S NOTE: The following letter was written in response to an article in the Herald-Guide May 14 regarding the pending litigation brought by three former employees of the Department of Community Services whose positions were eliminated following a study by an independent consultant and recommendations by three Parish officials to the then Parish President Albert Laque.)
To the editor:
Inasmuch as your story line sought to infuse “race” into the Parish’s efforts to secure civil service status for the Department of Community Services, it should be noted that it was necessary to eliminate three positions (occupied by the plaintiffs) in order to facilitate the adding of seven civil service positions to Parish government, with six of the seven positions being occupied by African American females.
Your published article reflects a misunderstanding of the pending litigation on the part of the reporter despite my forwarding to her of the below statement and the appellate briefs that we filed on behalf of Mr. Laque.
Not surprisingly, there is no mention in your paper’s story of the fact that plaintiffs’ age, gender, national origin, and intentional infliction of emotional harm claims have been dismissed at the federal district court level.
Moreover, your paper’s article is conspicuously silent as to the very narrow appeal opportunity available to Mr. Laque, and there is no mention in the article of the most significant part of the case, namely that as a matter of law the former employees were not civil service employees and were not denied due process.
The article is written as if the appellate court or for that matter the district court made findings against Mr. Laque in terms of the merits of the case when in reality no court has done that; while Mr. Laque did not succeed in being released from the case as a co-defendant with the Parish, he didn’t lose anything as a result of the appeal and the Parish gained a very valuable ruling regarding what constitutes civil service status.
For these and the reasons contained in my initial (below) statement to the newspaper, Mr. Laque is entitled not to be tried in the press and to better treatment than he was accorded, especially considering his long and valued service and contributions to this Parish and the outstanding support and favorable reputation he enjoys among all citizens of St. Charles Parish.
Thanks for agreeing to publish this letter response to your article as well as the following (complete) written response to your reporter on May 6, 2008:
In the pending suit filed by three former employees of St. Charles Parish ’s Department of Community Services, the United States 5th Circuit Court of Appeals in N.O., LA in a decision issued April 24, 2008 reversed the federal district court’s denial of dismissal on the due process claim while allowing remaining claims to proceed. The federal appellate court was able to hear the appeal while the matter was still pending in the district court due to a limited appeal process in cases where public officials such as former Parish President Albert Laque are allowed to assert the defense of qualified immunity in a civil suit seeking damages and naming the public official as a defendant. The suit is being returned to the district court for the resumption of pretrial proceedings such as depositions and other discovery. There has been no finding of liability as to either Laque or the Parish, and no such finding is expected.
Regarding the important issue of due process, the federal appellate court agreed that Mr. Laque’s conduct was “objectively reasonable” in view of there being no established law or precedent providing civil service protection to employees who were not formally designated as civil service. The appellate court rejected the former employees’ argument that they were somehow “de facto” civil service as inconsistent with due process standards, which will prevent other non-classified Parish employees from claiming civil service status. The due process claim has been decided in Mr. Laque’s favor and cannot be re-urged in the district court.
On appeal, the key was whether the former employees had waived their right to contest Mr. Laque’s entitlement to dismissal by failing to brief these other issues in their opposition. While acknowledging that the former employees had not specifically briefed the issue of discrimination in opposition to Mr. Laque’s defense of qualified immunity, the federal appellate court nevertheless concluded that the former employees’ opposition somehow addressed the issue elsewhere in their briefing. The appellate court also found that it could not review the district court’s finding that a genuine issue of material fact existed such that the issue of alleged discrimination needed to be resolved through further proceedings in the district court and not by way of a summary judgment dismissal.
The claim regarding whether the former employees engaged in protected speech in “pushing for civil service” in the context of race ignores the undisputed evidence that all 10 non-civil service employees favored civil service and that there was no evidence that the three former employees ever engaged in any speech that was race-related; the only record support for any such claim can be found in the argument of counsel for the former employees and not in any position actually urged or supported with any evidence.
Regarding whether the former employees were somehow retaliated against some seven months following the fall 2003 election for parish president for allegedly supporting Mr. Laque’s opponent, the appellate court relied on the limited scope of appellate review in this type of case and simply cited the district court’s determination that a fact issue existed in this regard. The appellate court never addressed the undisputed evidence establishing that the process by which the positions of the three former employees were eliminated also resulted in seven positions gaining Civil Service status, with six of the seven positions occupied by African-American females. The appellate court’s decision also overlooks the undisputed fact that an independent consultant recommended that three positions be eliminated to order to ensure civil service status for the remaining seven positions and that the former employees’ positions were selected for elimination by a three-person committee consisting of their department manager and the Parish’s personnel manager and chief administrative officer and that Mr. Laque merely adopted the committee’s recommendation.
The Fifth Circuit did not render any decision as to liability on any claim beyond its dismissal of the due process claim, thus allowing the remaining claims to be returned to the federal district court for further proceedings.
The Parish and Mr. Laque expect that all claims will ultimately be dismissed.
I. Harold Koretzky
Carver Darden Koretzky Tessier Finn Blossman & Areaux, L.L.C.
Attorneys and Counselors at Law
1100 Poydras Street – Suite 3100 – New Orleans, LA 70163