Degrate v. Monroe et al

MOTION for Summary Judgment

W.D. La.November 10, 2016

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION WILLIAM EARL DEGRATE JUDGE: JAMES VS. 13:15-CV02641 CITY OF MONROE, ET AL MAGISTRATE: HAYES MOTION FOR SUMMARY JUDGMENT ON BEHALF OF DEFENDANTS JAMIE MAYO, JOHN ROSS, BRUCE WATSON, SAM TENNESSEE AND LOIS ROGERS NOW INTO COURT, through undersigned counsel come Defendants, Jamie Mayo, John Ross, Bruce Watson, Sam Tennessee and Lois Rogers respectfully submitting the following: 1. Plaintiff William Earl DeGrate alleges he was wrongfully terminated by the City of Monroe and apparently believes he was discriminated against and defamed by the Defendants. 2. As more fully shown in Defendant’s Memorandum in Support of Motion for Summary Judgment and the exhibits attached thereto which are incorporated herein by reference, applicable law does not allow recovery to the Plaintiff and the Defendants are entitled to summary judgment dismissing Plaintiff’s demands, with prejudice, as well as all costs, together with an award of attorney fees in accordance with 42 U.S.S. Section 1988(b). 3. In support of the Defendant’s Motion for Summary Judgment, Defendant attaches and submits the following exhibits: 1. Memorandum in Support of Motion for Summary Judgment Case 3:15-cv-02641-RGJ-KLH Document 37 Filed 11/10/16 Page 1 of 3 PageID #: 163 2. List of Undisputed Material Facts 3. Pages from the deposition of William Earl DeGrate 4. Affidavit of Christine Winfield 5. Determination letter of November 3, 2014 addressed to William DeGrate 6. Affidavit of Janice Charleston 7. Affidavit of Ladopha P. Hopkins 8. Affidavit of Lovela Young 9. Affidavit of Remonica Person 10. Affidavit of Bruce Watson Movers show that the pleadings, depositions, exhibits and affidavits which are attached hereto, and incorporated herein, reveal that there is no genuine issue of material fact as to whether Plaintiff, Jerome Grimes, was arrested pursuant to probable cause and asks that this Court to grant Summary Judgment herein as a matter of law. S/Nanci S. Summersgill Nanci S. Summersgill #17161 City Attorney - City of Monroe P. O. Box 123 (71210) 400 Lea Joyner Memorial Expressway Monroe, LA (71201) (318) 329-2240 - telephone (318) 329-3427 - facsimile Case 3:15-cv-02641-RGJ-KLH Document 37 Filed 11/10/16 Page 2 of 3 PageID #: 164 CERTIFICATE OF SERVICE I, NANCI SUMMERSGILL, certify that a copy of the above and foregoing Motion For Summary Judgment and all attachments thereto has been filed has been filed electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be sent to William DeGrate, 820 Bryant, Monroe, LA 71201. Monroe, LA this 10 day of November 2016.th S/Nanci S. Summersgill #17161 Nanci S. Summersgill Case 3:15-cv-02641-RGJ-KLH Document 37 Filed 11/10/16 Page 3 of 3 PageID #: 165 1 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION WILLIAM EARL DEGRATE CASE NO. CV3:15-CV-2641 Plaintiff VERSUS JUDGE JAMES CITY OF MONROE, ET AL MAGISTRATE: HAYES Defendants ____________________________________________________________________________ MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE MOTION TO DISMISS MAY IT PLEASE THE COURT: This suit arises from the termination of Mr. William Earl DeGrate from his part-time employment with the City of Monroe. He began his employment on October 9, 2013 in the Department of Community Affairs under Recreation. (Exhibit 3, C-1). According to Mr. DeGrate, he was supposed to make sure the children at the recreation center did not fight and generally obeyed the rules and regulations. Further, according to Mr. DeGrate, he was not involved in any sports activities for the children. (Exhibit 3, pp. 20- 21). However, Mr. DeGrate later admitted that during his hours of employment with the City, he did coach a non-city sponsored baseball team. (Exhibit 3, pp. 25-28). Mr. DeGrate testified during his deposition that he was on City time when he coached the members of his team. (Exhibit 3, p. 25, ll.18-25; p. 26, ll.1-2 ). When asked during a deposition if he asked parents for money for uniforms for his team, Mr. DeGrate responded “That is not any of your business.”. (Exhibit 3, p. 29). Case 3:15-cv-02641-RGJ-KLH Document 37-1 Filed 11/10/16 Page 1 of 9 PageID #: 166 2 Mr. DeGrate was terminated by the City of Monroe on November 4, 2014. (Exhibit 5). Prior to his termination, Mr. DeGrate was informed of the actions he was being investigated for through a Pre-Disciplinary Letter which he admitted receiving and he thereafter attended the hearing. (Exhibit 3, p.31; C-7). He admits he was told he could bring witnesses to the hearing, he did not bring anyone with him and he knew what he was being investigated for. He admitted during the deposition that he knew one of the reasons he was being investigated was for taking money for uniforms during his employment and he admitted he understood that. (Exhibit 3, p.32, ll. 14-25). After considering Mr. DeGrate’s responses during the Pre-disciplinary hearing, he was terminated by letter dated November 3, 2014 (Exhibit 5 ). Mr. DeGrate applied for unemployment after his termination which was denied. (Exhibit 3, p.29, ll. 18-25). He thereafter filed the instant lawsuit for wrongful termination, discrimination (for something that appears to be unrelated to his employment with the City) and defamation of character. LAW AND ARGUMENT SUMMARY JUDGMENT STANDARD: Under F.R.C.P. Rule 56, summary judgment is proper if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Morin v.Caire, 7 F.3d 116 (5 Cir 1996)th Case 3:15-cv-02641-RGJ-KLH Document 37-1 Filed 11/10/16 Page 2 of 9 PageID #: 167 3 The materiality of facts is determined by the substantive law’s identification of which facts are critical and which facts are irrelevant. Rule 56(C) “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case and on which that party will bear the burden of proof at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Local Rule 56.1 requires a statement of material facts as which it contends there is no genuine issue to be tried to be filed by the moving party. All material facts set forth in the statement required to be served by the moving party “will be deemed admitted, for purposes of the motion, unless controverted as required by this rule.” Local Rule 56.2. Defendant’s Motion for Summary Judgment poses the following legal issues: 1) was Plaintiff DeGrate an “at will” employee; 3) in the alternative, was Plaintiff terminated for just cause; 3) has Plaintiff alleged sufficient facts to substantiate a claim for discrimination; and 4) did any actions by the Defendants defame Plaintiff DeGrate. LAW AND ARGUMENT ON WRONGFUL TERMINATION Plaintiff DeGrate was an “at will” employee for the City of Monroe. Mr. DeGrate was hired as a temporary part-time employee. (Exhibit 3, p. ll. 15-19, C-1). Louisiana law provides for two types of employment situations: (1) the terminable at- will contract, and (2) a contractual agreement for a certain time. Nicholas v. Allstate Ins. Co., 30,735 (La.App.2d Cir.5/28/99), 739 So.2d 830, rev'd on other grounds at 99-2522 (La.8/31/00), 765 So.2d 1017; Deus v. Allstate Ins. Co., 15 F.3d 506 (5th Cir.1994), cert. denied, 513 U.S. Case 3:15-cv-02641-RGJ-KLH Document 37-1 Filed 11/10/16 Page 3 of 9 PageID #: 168 4 1014, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994). Absent a specific contract or agreement establishing a fixed term of employment, an employer is at liberty to dismiss an employee at any time for any reason without incurring liability for the discharge. Deus, supra; Williams v. Delta Haven, Inc., 416 So.2d 637 (La.App. 2d Cir.1982). Plaintiff DeGrate has not asserted any claim for a specific term of employment and having signed the attached City of Monroe “Acknowledgment Receipt” for certain City of Monroe documents and policies (Exhibit 3, p. 8., ll.6-13; C-2) on 10-21-2013, Mr. DeGrate began his employment as an “at-will” part time employee. Plaintiff was not wrongfully terminated. Despite his “at will” status plaintiff was notified of the charges against him on October 15, 2014 and given an opportunity to refute the concerns of management on October 17, 2014. (Exhibit 3, pp. 30-32; C-6). He was unable to add anything regarding the concerns when he met with management. (Exhibit 3, p.32, ll. 7-25). Plaintiff’s termination arose from various violations of the City of Monroe employee handbook including insubordination. Plaintiff DeGrate admitted to receiving the employee handbook. (Exhibit 3, p. 8, ll. 6-11). As can be seen from the attached Affidavits of numerous citizens of Monroe (Exhibits 6-9), parents and grandparents were asked by Mr. DeGrate to pay for or contribute to the purchase of uniforms for their children to play baseball. When asked about whether he had accepted funds for private citizens for uniforms Mr. DeGrate responded in his deposition that it was none of this attorney’s business. (Exhibit 3, p. 28-29). The City of Monroe takes very seriously the allegations of receiving cash funds from any activity relating to an employee’s duties and employment with the City. As stated in the Pre- Case 3:15-cv-02641-RGJ-KLH Document 37-1 Filed 11/10/16 Page 4 of 9 PageID #: 169 5 disciplinary letter to Mr. DeGrate (Exhibit 3, C-6) and pursuant to the Louisiana Code of Governmental Ethics, the code is violated when: LSA-R.S. 42:1111(A): A. (1)(a) Payments for services to the governmental entity. No public servant shall receive anything of economic value, other than compensation and benefits from the governmental entity to which he is duly entitled, for the performance of the duties and responsibilities of his office or position. LSA-R.S. 42:1112(A): A. No public servant, except as provided in R.S. 42:1120, shall participate in a transaction in which he has a personal substantial economic interest of which he may be reasonably expected to know involving the governmental entity. LSA-R.S. 42:1116(A): A. No public servant shall use the authority of his office or position, directly or indirectly, in a manner intended to compel or coerce any person or other public servant to provide himself, any other public servant, or other person with anything of economic value. This Subsection shall not be construed to limit that authority authorized by law, statute, ordinance, or legislative rule in carrying out official duties. As can be seen by Mr. DeGrate’s own deposition, he was coaching young boys for baseball while he was working for the City of Monroe and he was “on the clock”. (Exhibit 3, pp. 23-27). His employment activities combined with the allegations by parents of his soliciting funds for the purchase of uniforms and having been told not to do so by the Director of Parks and Recreation was the basis for his termination. (Exhibits 5 and 10). Case 3:15-cv-02641-RGJ-KLH Document 37-1 Filed 11/10/16 Page 5 of 9 PageID #: 170 6 LAW AND ARGUMENT ON DISCRIMINATION Plaintiff DeGrate’s claim concerning discrimination basically states that because he had to go to Ruston and Farmerville, Louisiana to find games for the team he coached and the lack of a comparable field at “Johnson” (Henrietta Johnson Recreation Center) to Saul Adler Field, he was discriminated against. The thrust of his argument seems to be there is discrimination between what Saul Adler Recreation Center looks like as compared to Henrietta Johnson Recreational Center. As can be seen from the attached affidavit of Bruce Watson (Exhibit 10) both centers look essentially the same and both are mowed regularly by the City of Monroe. The Supreme Court held in Ashcroft v.Iqbal, 556 U.S. 662, 678(2009), that “to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Moreover, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 679. The court must disregard “labels and conclusions,” “a formulaic recitation of the elements of a cause of action,” or “naked assertions(s) devoid of further factual enhancement.” Iqbal, 556 U.S. at 678. In light of Iqbal, a plaintiff must plead facts sufficient to show discriminatory intent. Iqbal, 556 U.S. at 675. In order for a plaintiff to plead discriminatory intent, sufficient factual matter must be pled to show that the practice at issue occurred “for the purpose of discriminating.” Iqbal, 556 U.S. at 677. Plaintiff DeGrate has not alleged any actions that even superficially purport to be discriminatory. Determining when a complaint states a plausible claim is a context-specific task, Case 3:15-cv-02641-RGJ-KLH Document 37-1 Filed 11/10/16 Page 6 of 9 PageID #: 171 7 requiring courts to rely on judicial experience and common sense to assess when a complaint crosses a line from conceivable to plausible. Easter v. Caldwell, No. 14-0967, 2015 WL 1281022(W.D. La., 3/20/2015). The complaint does not state any factual information supporting a claim of any kind of discrimination. Accordingly, simply because Plaintiff had to take his team to other locations to find teams to play and/or the grass was too high at the Johnson field, the Plaintiff has alleged no facts to state a claim of discrimination and to the extent that any discrimination claim may be alleged, the claim should be dismissed. LAW AND ARGUMENT ON DEFAMATION For a defamation claim, a plaintiff must establish the following necessary elements: (1) a false and defamatory statement concerning another person; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. Kennedy v. Sheriff of East Baton Rouge, 05–1418 (La.07/10/06), 935 So.2d 669. In the present case, the Defendants are unaware of any communication with any person or entity other than Plaintiff’s supervisors, the legal department for the City and the Personnel Department for the City relating to anything about Mr. DeGrate. The Affidavits from concerned parents and/or grandparents were taken after these citizens complained to the City of Monroe. The Defendants are unaware of any publication or statement made to any persons other than those mentioned herein and the City certainly has a duty to investigate any complaints made regarding an employee. Case 3:15-cv-02641-RGJ-KLH Document 37-1 Filed 11/10/16 Page 7 of 9 PageID #: 172 8 CONCLUSION Looking at the record as a whole, there are no issues of material fact. Plaintiff DeGrate was an “at will” employee of the City of Monroe and despite that status Mr. DeGrate was given an opportunity to explain his activities while “on the clock” for the City of Monroe. Though Mr. DeGrate could come up with a number of excuses, his services were no longer needed and there is no evidence or allegation that he was terminated for any discriminatory reason. Plaintiff DeGrate has not stated sufficient information for a claim of discrimination and that claim should be dismissed. Plaintiff has stated no allegations that support a claim of defamation. Defendant’s Motion for Summary Judgment and/or Motion to Dismiss should be granted. Respectfully submitted, S/Nanci S. Summersgill NANCI S. SUMMERSGILL, #17161 City Attorney, City of Monroe P.O. Box 123 Monroe, LA 71210 Phone (318) 329-2240 Fax (318) 329-3427 Case 3:15-cv-02641-RGJ-KLH Document 37-1 Filed 11/10/16 Page 8 of 9 PageID #: 173 9 Case 3:15-cv-02641-RGJ-KLH Document 37-1 Filed 11/10/16 Page 9 of 9 PageID #: 174 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF LOUISIANA MONROE DIVISION WILLIAM EARL DEGRATE CASE NO. CV3:15-CV-02641 Plaintiff VERSUS JUDGE JAMES CITY OF MONROE, ET AL MAGISTRATE: HAYES Defendants ____________________________________________________________________ DEFENDANT’S STATEMENT OF UNDISPUTED MATERIAL FACTS _______________________________________________________________________ NOW INTO COURT, through undersigned counsel come Defendants Jamie Mayo, John Ross, Bruce Watson, Sam Tennessee and Lois Rogers filing this Statement of Undisputed Material Facts for purposes of the Motion for Summary Judgment filed by Defendants on November 10, 2016. 1. Plaintiff was employed by the City of Monroe in October, 2013; 2. Plaintiff was terminated by the City of Monroe on November 4, 2014. S/Nanci S. Summersgill #17161 Nanci S. Summersgill Attorney for Defendants P.O. 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