Summary
In Guy v. Boys & Girls Club of Southeast Louisiana, Inc., 2005 WL 517503, at *4 (E.D. La. 2005), the court likewise declined to apply the non-profit exclusion from the LEDL to a whistleblower claim.
Summary of this case from Miller v. Upper Iowa Univ.Opinion
Civil Action No. 04-2189, SECTION "A"(3).
February 16, 2005
ORDER AND REASONS
Before this Court is Defendant's Rule 12(b)(6) Motion to Dismiss (Rec. Doc. 6), which was filed by the Boys Girls Club of Southeast Louisiana, Inc. (hereinafter "Boys and Girls Club"). Plaintiff, Darrell W. Guy, Sr., opposes the motion. The Defendant's motion was DENIED in part, specifically regarding Plaintiff's lost wage claim, during oral argument on January 12, 2005. Plaintiff's whistle-blower claim, however, was taken under advisement in order to allow the parties to clarify the potential application of Ray v. City of Bossier, 859 So.2d 264 (La.App. 2 Cir. 2003). For the reasons that follow, Defendant's motion is DENIED.
FACTS
This litigation arises from an employment dispute. Plaintiff, Darrell W. Guy, Sr. (Mr. Guy) was terminated from the position of Vice President/Chief Operating Officer with the Boys and Girls Club in February 2004. See Complaint, p. 36. Prior to his termination, Mr. Guy had worked with the Boys and Girls Club in various capacities since 1983. Id. at pp. 2-10. During his tenure with the Boys and Girls Club, Plaintiff's service and accomplishments were repeatedly recognized within the regional and national organization, as he was regularly promoted, served on several national boards, and received multiple regional and national awards. Id. at pp. 10-13.
In 2001, the executive director of the Boys and Girls Club resigned. Id. at p. 14. At the time, the Boys and Girls Club of Southeast Louisiana was in a financial crisis and owed state and federal taxes in excess of $250,000. Id. Soon thereafter, Robin Houston was named as the new executive director-in violation of an agreement that the Boys and Girls Club of Southeast Louisiana had with the Boys Girls Club of America. Id. Apparently, as a result of the breached agreement, the Board of Directors of Southeast Louisiana, of which Ms. Houston was a member, voted to change the title of the position from Executive Director to President/CEO and voted its approval to award Ms. Houston the position. Id. at p. 17.
As Ms. Houston had no experience with the daily operations of the Boys and Girls Club, she asked Mr. Guy to take on the organization's day-to-day operations. Id. Plaintiff alleges that Mr. Houston outlined his job responsibilities to include: running the daily operations of the organization, hiring and firing of staff, overseeing daily program activities at each club site, supervising branch directors, approving all supply requests, and organizing field trips. Id. Ms. Houston stated that her attention would be focused on working with the board, building relationships, and clearing up the organization's debts. Id.
Plaintiff's relationship with the Boys and Girls Club began to deteriorate in 2003 when the National Football League (NFL) developed a partnership with the Boys and Girls Club of America to manage their Youth Education Towns, which were located across the country. Id. at p. 20. The NFL sponsors and builds Youth Education Towns in each Superbowl city and donates $1 million to manage the center. The Boys and Girls Club of Southeast Louisiana was the recipient of an NFL Youth Education Town. Id. In August 2003, Ms. Houston hired Kenneth Bazile for the position of Branch Director of the Youth Education Town. Id. at p. 21. Although Mr. Bazile had worked within youth programs sponsored by the Boys and Girls Club in the New Orleans Parish Schools, he had no prior experience working within the Boys and Girls Club organization. Id. The position was not advertised to other Boys and Girls Club staff members or to the general public. Id.
Mr. Bazile's training was limited to his participation at a Youth Development Conference and a two-day training program for all Boys and Girls Club staff (which was presented by Mr. Guy). Id. Furthermore, Mr. Bazile did not attend the monthly staff meetings that Plaintiff had with all other Club Directors. Id. at p. 22. In January 2004, the NFL and the local Youth Education Town board approved the management agreement between Boys and Girls Club of Southeast Louisiana and the local Youth Education Town. Id. Ms. Houston informed Plaintiff that the Youth Education Town was to be managed like the rest of the Boys and Girls Club facilities. Id.
Plaintiff alleges that Mr. Bazile mismanaged the facility, specifically in regard to his hiring and managing of employees. Id. at pp. 22-28. Specifically, Mr. Bazile was provided with a list of job positions that he was allowed to hire (along with corresponding pay rates). Id. Mr. Bazile hired multiple people and paid them at rates in excess of the designated rates. Id. Furthermore, Mr. Bazile failed to have his new employees fill out necessary paperwork and when 28 employment applications arrived (many were incomplete), they were accompanied by time sheets that were two days late for the scheduled payroll date. Id. Mr. Guy recognized that two of the applicants were being paid in excess of rates that were stipulated by a grant that was funding the positions. Accordingly, Plaintiff made corrections to the applications and the pay rates to ensure that the Boys and Girls Club remained in compliance with the grant. Id. at p. 26. Plaintiff complains that he was terminated for adjusting the pay rates to comply with applicable state laws governing compliance with grants.
LAW
In considering a motion to dismiss for failure to state a claim, this Court must take the facts as alleged in the complaint as true, and may not dismiss the complaint unless it appears clear that the plaintiff can prove no set of facts that would entitle him to relief. Kennedy v. Chase Manhattan Bank USA, NA, 369 F.3d 833, 839 (5th Cir. 2004). However, conclusory allegations and unwarranted deductions of fact will not suffice to prevent a motion to dismiss. Guidry v. Bank of LaPlace, 954 F.2d 278, 281 (5th Cir. 1992).
Plaintiff's Whistleblower Claim
La.R.S. 23:967 states in relevant part:
A. An employer shall not take reprisal against an employee who in good faith, and after advising the employer of the violation of law:
(1) Discloses or threatens to disclose a workplace act or practice that is in violation of state law.
(3) Objects to or refuses to participate in an employment act or practice that is in violation of law.
In its Motion to Dismiss, Defendant argued that Plaintiff had not "stated a cause of action against Defendant because he failed to identify any 'law' that the Boys and Girls Club allegedly violated, much less one that he disclosed or threatened to disclose or in which he refused to participate. See Defendant's Memorandum in Support, p. 10. In his opposition, however, Plaintiff responded that he would amend his complaint to allege that the Louisiana Department of Education ( i.e., the entity that provided the grant money that plaintiff alleges was improperly used) has regulations that require grant recipients "to expend grant funds in accordance with the budget approved by the Department of Education and that any expenditure of grant funds for a purpose other than an approved purpose is illegal." See Plaintiff's Opposition, p. 6.
Subsequently, Defendant filed a reply memorandum that alleges the Boys and Girls Club is a non-profit organization and, therefore, is not an "employer" that is subject to regulation by La.R.S. 23:302. See Defendant's Reply Memorandum, p. 2. Defendant offers that the whistle-blower statute does not define "employer," but that the term is precisely defined by Louisiana Employment Discrimination law in La.R.S. 23:302:
(2) "Employer" means 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. The provisions of this Chapter shall apply only to an employer who employs twenty or more employees within this state for each working day in each of twenty or more calendar weeks in the current or preceding calendar year. "Employer" shall also include an insurer, as defined in R.S. 22:5, with respect to appointment of agents, regardless of the character of the agent's employment. This Chapter shall not apply to the following:
(b) Employment of an individual by a private educational or religious institution or any nonprofit corporation, or the employment by a school, college, university, or other educational institution or institution of learning of persons having a particular religion if the school, college, university, or other educational institution or institution of learning is, in whole or in substantial part, owned, supported, controlled, or managed by a particular religion or by a particular religious corporation, association, or society, or if the curriculum of the school, college, university, other educational institution, or institution of learning is directed toward the propagation of a particular religion. Defendant further supports its view by citing Jackson v. Xavier University of Louisiana, 2002 WL 1482756 (E.D. La. 2002) (J. Berrigan). In Jackson, the court held that a former university employee's claim under La.R.S. 23:697 was barred because her employment by Xavier, a private university, did not fall within the scope of the Louisiana whistleblower statute.
In response to this new defense, Plaintiff filed his own reply memorandum alleging two primary defenses: (1) the definition of employer that Defendant seeks to use from the Louisiana Employment Discrimination law is expressly limited to the chapter of the Revised Statutes in which it is contained — a chapter that does not include La.R.S. 23:697; and (2) even if the Court agrees that the definition is applicable, a reading of the definition makes it clear that the statute only intends to protect religious organizations from employment discrimination suits. Moreover, Plaintiff notes that the Jackson case is distinguishable for several reasons: (1) the plaintiff in Jackson made very little effort to oppose Xavier's motion (as acknowledged in a footnote in the opinion); (2) Xavier is a non-profit private university associated with the Catholic Church; and (3) Defendant is unable to cite to any other authority in support of its proposition that all non-profits are immune from whistleblower suits. During oral argument, however, Defendant referred to the case of Ray v. City of Bossier, 859 So.2d 264 (La.App. 2 Cir. 10/24/03) in support of its argument that the definition of employer found in Louisiana's Employment Discrimination Law (La.R.S. 23:302(2)) also applies to whistleblower claims.
In Ray, two police officers brought a retaliatory discharge action against the City of Bossier and numerous city officials — including the city's public information officer, a city attorney, and a city councilman. 859 So.2d at 272. In considering whether these officials were employers liable to the officers under the whistleblower statute, the Ray court relied largely in part on Jackson in reaching its conclusions. Id. To determine whether an employment relationship existed among the officers and the defendant-officials, the court considered both the definition of employer found in Louisiana's Employment Discrimination Law and Louisiana jurisprudence that uniformly holds "that the most important element to be considered is the right of control and supervision over an individual." Id.
In finding that the defendant-officials had neither power of control, nor power of dismissal over the officers, and that the officials provided neither compensation nor benefits to the plaintiffs the Court held that the city officials were not the police officer's employers. Id. Contrary to Defendant's assertions, Ray does more to support Plaintiff's case in the present matter than it does to support Defendant. Specifically, it is uncontested that the Boys and Girls Club provided compensation and benefits to Mr. Guy and that it had the power to control and terminate him. Accordingly, using the Louisiana jurisprudential "control" test, Mr. Guy has alleged facts that would support a finding that the Boys and Girls Club is an employer that is not entitled to benefit from the exclusionary language found in La.R.S. 23:302(2).
Accordingly;
IT IS ORDERED that Defendant's Rule 12(b)(6) Motion to Dismiss (Rec. Doc. 6), as it pertains to Plaintiff's whistleblower claim should be and is hereby DENIED.