James Cunningham v. the City of New Orleans & the New Orleans Police Department

JAMES CUNNINGHAM * NO. 2021-CA-0532

VERSUS *
COURT OF APPEAL
THE CITY OF NEW ORLEANS *
& THE NEW ORLEANS FOURTH CIRCUIT
POLICE DEPARTMENT *
STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2017-02521, DIVISION “A”
Honorable Ellen M. Hazeur, Judge
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Pro
Tempore Lynn M. Luker)

Frank G. DeSalvo
Shannon R. Bourgeois
FRANK G. DeSALVO, APLC
739 Baronne Street
New Orleans, LA 70113

COUNSEL FOR PLAINTIFF/APPELLANT

Daniel T. Smith, Assistant City Attorney
Isaka R. Williams, Assistant City Attorney
Corwin M. St. Raymond, Deputy Assistant City Attorney
Churita H. Hansell, Chief Deputy City Attorney
Donesia D. Turner, City Attorney
1300 Perdido Street
City Hall - Room 5E-03
New Orleans, LA 70112

COUNSEL FOR DEFENDANTS/APPELLEES

AFFIRMED
MARCH 30, 2022

DNA
TFL
LML

This tort appeal arises from a civil service matter in which the New Orleans

Police Department (hereinafter “NOPD”) brought disciplinary proceedings against

a police officer after his involvement in a domestic dispute. Appellant, James

Cunningham (hereinafter “Mr. Cunningham”1), appeals the trial court’s October

15, 2020 judgment, which granted the Third Exception of No Cause of Action filed

by Appellee, the City of New Orleans (hereinafter “City”), and by some City

employees, namely Shaun Ferguson, Michael Harrison, Arlen Barnes, Derek Frick,

Arlinda Westbrook, and Shontee Smothers, and dismissed Mr. Cunningham’s

Petition for Damages with prejudice. For the following reasons, we affirm the trial

court’s judgment.

1
As discussed more fully throughout this Opinion, James Cunningham served as
an officer with NOPD at the time of the incident giving rise to this suit; however,
based on the record before this Court, it is unclear whether he is presently
employed as a police officer with NOPD or with any other police department.
Accordingly, this Opinion will refer to James Cunningham as “Mr. Cunningham”
rather than “Officer Cunningham.”

1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Petition for Damages

After he was arrested following a domestic dispute that occurred on January

13, 2015, NOPD commenced disciplinary proceedings against Mr. Cunningham,

who was an off-duty police officer with NOPD at the time of the dispute.2 On

March 2, 2016, NOPD conducted Mr. Cunningham’s disciplinary hearing relating

to the domestic dispute, but he did not attend the hearing.3 On March 17, 2016,

NOPD terminated Mr. Cunningham. He filed an appeal of his termination to the

Civil Service Commission of the City of New Orleans (hereinafter “Commission”)

on April 5, 2016.

Additionally, after his termination, Mr. Cunningham initiated this legal

proceeding with the filing of a Petition for Damages (hereinafter “Petition”) in the

Civil District Court for the Parish of Orleans on March 17, 2017. In the Petition,

he named the City and NOPD as defendants. Mr. Cunningham stated that his

termination was discriminatory; in violation of La. R.S. 23:332;4 and retaliatory.

2
Because the facts of the incident are not relevant to this appeal, instead of
reproducing them in this Opinion, we adopt the factual background produced in
this Court’s Opinion in response to Mr. Cunningham’s prior appeal. See
Cunningham v. New Orleans Police Dep’t, 2018-0095 (La. App. 4 Cir. 10/10/18),
257 So.3d 801.
3
In briefing to this Court, Mr. Cunningham and the City dispute the reason for his
absence at the March 2, 2016 disciplinary hearing. Mr. Cunningham alleges that he
missed the hearing because he was on authorized medical leave. However, the City
notes that the Civil Service Commission’s Judgment in this matter ultimately
concluded that Mr. Cunningham declined to attend the hearing upon advice of his
counsel to invoke his Fifth Amendment right against self-incrimination because
criminal charges stemming from the January 13, 2015 domestic dispute were still
pending against Mr. Cunningham.
4
Louisiana Revised Statute 23:332 pertains to “[i]ntentional discrimination in
employment.”

2

Mr. Cunningham also asserted that, as a result of his wrongful termination, he

suffered “los[t] wages, fright, fear, mental anguish, emotional distress and all

damages as are reasonable under the circumstances.” Further, he alleged that he

suffered injuries as a result of the City and NOPD unlawfully confining his person.

Mr. Cunningham listed these injuries as including physical injuries, mental

suffering, loss of earnings, injury to his reputation, and deprivation of any right

caused by the loss of liberty.

First Exception of No Cause of Action

In response to the Petition, on May 19, 2017, the City and NOPD filed a

Declinatory Exception of Lack of Jurisdiction;5 a Peremptory Exception of No

Cause of Action (hereinafter “First Exception of No Cause of Action”); 6 and a

Peremptory Exception of Prescription.7 However, the City agreed to continue

these exceptions pending the outcome of Mr. Cunningham’s appeal to the

Commission.

Civil Service Commission Hearing and Judgment

On June 29, 2017, the Commission conducted a hearing regarding Mr.

Cunningham’s appeal of his termination, and Mr. Cunningham was present at the

hearing. In his appeal to the Commission, Mr. Cunningham contended that his

5
In the Exception of Lack of Jurisdiction, the City and NOPD argued that the trial
court “lacked subject matter jurisdiction over [Mr. Cunningham]’s claims for
damages resulting from his allegedly wrongful termination, which can only
properly be resolved by the [Commission].”
6
In the First Exception of No Cause of Action, the City and NOPD argued that Mr.
Cunningham failed to allege well-pleaded facts to support a cause of action for
employment discrimination or retaliation.
7
In the Exception of Prescription, the City and NOPD argued that Mr.
Cunningham’s claims resulting from his arrest prescribed one year after his arrest
and detention and had prescribed by the date Mr. Cunningham filed his Petition on
March 17, 2017.

3

termination was arbitrary, unreasonable, and without any basis in fact or law.

Additionally, at the June 29, 2017 hearing, Mr. Cunningham argued that his due

process rights had been violated because he had not received a meaningful

opportunity to respond to the disciplinary allegations against him prior to his

termination.

The Commission, in an October 17, 2017 judgment, upheld Mr.

Cunningham’s termination from NOPD. Further, the Commission found that Mr.

Cunningham’s due process rights had not been violated during his disciplinary

proceedings. Rather, the Commission determined that Mr. Cunningham decided

not to attend his March 2, 2016 disciplinary hearing on advice of counsel because

he wanted to invoke his Fifth Amendment right against self-incrimination as

criminal charges stemming from the domestic dispute were still pending against

him. The Commission concluded that Mr. Cunningham declining to attend the

disciplinary hearing did not change the fact that the City presented Mr.

Cunningham with an opportunity to be heard and did not violate his due process

rights.

On October 24, 2017, Mr. Cunningham filed a Notice of Appeal regarding

the Commission’s October 17, 2017 judgment. In his Notice of Appeal, Mr.

Cunningham asserted that “[t]he [Commission] erred in denying [his] appeal.” The

matter proceeded before this Court.

Prior Appeal

Mr. Cunningham’s appeal of the Commission’s October 17, 2017 judgment

resulted in this Court’s decision in Cunningham, 2018-0095, 257 So.3d 801. In his

prior appeal to this Court, Mr. Cunningham did not appeal that portion of the

Commission’s judgment which determined that his due process rights had not been

4

violated. Id., 2018-0095, p. 4, 257 So.3d at 804. Instead, in briefing to this Court,

Mr. Cunningham’s assignments of error concerned whether the Commission

abused its discretion and acted arbitrarily and capriciously by upholding his

termination. Id. This Court determined that the Commission abused its discretion

and acted arbitrarily and capriciously by upholding Mr. Cunningham’s termination

because his termination was contrary to NOPD’s Disciplinary Hearings and

Penalty Schedule. Id., 2018-0095, pp. 9-10, 257 So.3d at 807. This Court reversed

the Commission’s decision affirming NOPD’s termination of Mr. Cunningham and

ordered NOPD to reinstate him, subject to a ten-day suspension. Id., 2018-0095, p.

10, 257 So.3d at 807.

First Amending Petition

After this Court rendered its Opinion in Mr. Cunningham’s prior appeal, on

July 9, 2019, Mr. Cunningham filed a “Motion for Leave to File [a] First

Supplemental and Amending Petition,” which the trial court granted on July 17,

2019 (hereinafter “First Amending Petition”). In his First Amending Petition, Mr.

Cunningham listed as additional defendants, in both their individual and official

capacities, some current and former employees of NOPD, namely Ronal Serpas,

Michael Harrison, Shaun Ferguson, Arlen Barnes, Derek Frick, Randy Mushatt,

Doc Watson, Danny Wharton, Arlinda Westbrook, and Shontee A. Smothers

(hereinafter collectively “City Employees”).

In the First Amending Petition, Mr. Cunningham alleged that, beginning in

November 2011, he had endured and suffered “a pattern of continuous harassment,

mental distress and intentional infliction of emotional distress, inability to advance

in rank due to retaliation, a series of harassing and defamatory unfounded

disciplinary actions, being publicly defamed and denigrated and being made to

5

endure false and retaliatory accusations . . . . ” Further, Mr. Cunningham contended

that his “due process rights under the Louisiana Constitution were violated because

the City [] through [NOPD] and Superintendent Shaun Ferguson, former [NOPD]

Superintendent Ronal Serpas[,] and former [NOPD] Superintendent Michael

Harrison deprived [him] of his liberty right of employment and took years of his

salary without giving him due process to contest the reasons for his termination.”

Specifically, Mr. Cunningham contended that he did not receive proper notice of

the disciplinary charges against him or an opportunity to refute those charges.

Regarding the City Employees in particular, Mr. Cunningham asserted that

the City Employees prevented or interfered with his ability to secure employment

with another law enforcement entity “by refusing to release his personnel records

when requested and/or maintaining unfounded public integrity complaints.” Mr.

Cunningham also asserted that the City Employees engaged in a “concerted and

intentional effort . . . to deny [him] life, liberty, and pursuit of happiness, in

violation of his rights under the Louisiana Constitution.” Additionally, he argued

that both the City and the City Employees engaged in intentional infliction of

emotional distress, defamation, and injury to his employment record and future

promotion and employment prospects.

Second Exception of No Cause of Action

In response to Mr. Cunningham’s First Amending Petition, on September

16, 2019, the City and some of the City Employees8 filed Exceptions of Lack of

Subject Matter Jurisdiction, Prematurity, No Cause of Action, and Prescription. In

this Exception of No Cause of Action (hereinafter “Second Exception of No Cause

8
Namely, the City Employees who filed these exceptions were Shaun Ferguson,
Michael Harrison, Arlen Barnes, Derek Frick, Arlinda Westbrook, and Shontee
Smothers.

6

of Action”), they asserted that Mr. Cunningham had not pled any specific factual

allegations to justify naming the City Employees in their individual capacities.

Additionally, they asserted that Mr. Cunningham failed to adequately plead facts to

sustain his claims for discrimination; retaliation; workplace harassment or hostile

work environment; intentional infliction of emotional distress; defamation; and

deprivation of due process. On November 22, 2019, the trial court conducted a

hearing on the exceptions. In a December 11, 2019 judgment, the trial court, in

pertinent part, granted the Second Exception of No Cause of Action but gave Mr.

Cunningham fifteen days to amend his petition.

Second Amending Petition

On December 24, 2019, Mr. Cunningham filed a “Motion for Leave to File

Plaintiff’s Second Supplemental and Amending Petition,” which the trial court

granted (hereinafter “Second Amending Petition”). In the Second Amending

Petition, Mr. Cunningham contended that he “did not attend [his] disciplinary

hearing because he was on authorized medical leave from [NOPD] when the

hearing was conducted.” Addressing his claim for retaliation, Mr. Cunningham

asserted:

[Mr. Cunningham] would submit that he had engaged in the protected
activity of reporting [NOPD] [O]fficer Danny Wharton and other
[NOPD] officers to the independent police monitor for the lack of due
process afforded to [him] . . . and, as a result of these complaints, he
suffered [] the adverse employment action of being terminated from
his employment as a[n] [NOPD] officer while on medical leave and
without a hearing and a causal relationship exists between his
complaints about [Officer] Danny Wharton and other [NOPD]
[o]fficers [and his] termination.

Further, Mr. Cunningham alleged, with respect to his intentional infliction of

emotional distress claim, “that the actions of each of the named defendants . . . was

extreme and outrageous”; that “the emotional distress suffered by [him] was

7

severe”; and that “each of the named defendants desired to inflict severe emotional

distress or knew that severe emotional distress would be certain or substantially

certain to result from their conduct . . . .” Regarding his defamation claim, Mr.

Cunningham argued that “false and defamatory statement[s] concerning [him]

were made through out the disciplinary process at which he was not permitted to

be present” and that “the outcome of the hearing and the defamatory statements . . .

were made available to the public . . . .”

Third Exception of No Cause of Action

After Mr. Cunningham filed his Second Amending Petition, on July 2, 2020,

the City and some of the City Employees 9 filed another Peremptory Exception of

No Cause of Action (hereinafter “Third Exception of No Cause of Action”). They

contended that Mr. Cunningham’s Petition and First and Second Amending

Petitions (hereinafter collectively “Petitions”) failed to adequately plead additional

facts to state a cause of action for deprivation of due process, retaliation,

intentional infliction of emotional distress, and defamation. Additionally, they

again asserted that Mr. Cunningham had not specifically pled any factual

allegations to justify naming the City Employees in their individual capacities.

Further, they argued that because he did not enhance the Petitions with any new

allegations, Mr. Cunningham had abandoned his claims for discrimination;

workplace harassment and hostile work environment; detention; and wages,

benefits, and emoluments based on his termination.

9
Namely, the City Employees were Shaun Ferguson, Michael Harrison, Arlen
Barnes, Derek Frick, Arlinda Westbrook, and Shontee Smothers.

8

October 15, 2020 Judgment

On October 6, 2020, the trial court held a hearing on the Third Exception of

No Cause of Action. In a judgment dated October 15, 2020, the trial court granted

the Third Exception of No Cause of Action and dismissed Mr. Cunningham’s

Petition with prejudice. On October 23, 2020, Mr. Cunningham filed a “Notice of

Appeal,” which the trial court granted on November 9, 2020. This appeal of the

October 15, 2020 trial court judgment follows.

STANDARD OF REVIEW

An exception of no cause of action presents a question of law, so an

appellate court reviews a trial court’s ruling on an exception of no cause of action

de novo. Fertitta v. Regions Bank, 2020-0300, p. 7 (La. App. 4 Cir. 12/9/20), 311

So.3d 445, 451 (citing Ocwen Loan Servicing, LLC v. Porter, 2018-0187, p. 3 (La.

App. 4 Cir. 5/23/18), 248 So.3d 491, 495). See also White v. New Orleans Ctr. for

Creative Arts, 2019-0213, 2019-0214, p. 7 (La. App. 4 Cir. 9/25/19), 281 So.3d

813, 819; Badeaux v. Sw. Comput. Bureau, Inc., 2005-0612, 2005-719, pp. 6-7 (La.

3/17/06), 929 So.2d 1211, 1217.

DISCUSSION

On appeal, Mr. Cunningham does not label anything in his brief to this Court

as an “Assignment of Error.” However, in a section titled “Summary of

Argument,” Mr. Cunningham contends that “[t]he trial court erred when it ruled

that [Mr.] Cunningham’s pleadings, as supplemented, failed to state [a] cause of

action against the City of New Orleans, Shaun Ferguson, Michael Harrison, Arlen

Barnes, Derek Frick, Arlinda Westbrook[,] and Shontee Smothers.” Throughout

his brief, he asserts that his Petitions sufficiently pled a cause of action for (1)

9

deprivation of due process; (2) retaliation; (3) intentional infliction of emotional

distress; and (4) defamation.

No Cause of Action

“No cause of action” is one of the objections that may be raised by the

peremptory exception. La. C.C.P. art. 927(A)(5). “The function of the peremptory

exception is to have the plaintiff’s action declared legally nonexistent, or barred by

effect of law, and hence this exception tends to dismiss or defeat the action.” La.

C.C.P. art. 923. “A peremptory exception of no cause of action questions whether

the law extends a remedy against a defendant to anyone under the factual

allegations of a petition.” Fertitta, 2020-0300, p. 6, 311 So.3d at 450 (quoting

White, 2019-0213, 2019-0214, p. 7, 281 So.3d at 819). It “tests ‘the legal

sufficiency of the petition by determining whether the law affords a remedy on the

facts alleged in the pleading.’” Id. (quoting Green v. Garcia-Victor, 2017-0695, p.

4 (La. App. 4 Cir. 5/16/18), 248 So.3d 449, 453). See also White, 2019-0213,

2019-0214, p. 7, 281 So.3d at 819. The moving party bears the burden of

demonstrating that the petition fails to state a cause of action. Zeigler v. Hous.

Auth. of New Orleans, 2012-1168, p. 7 (La. App. 4 Cir. 4/24/13), 118 So.3d 442,

449 (citing Milburn v. Emanuele, 2012-0235, p. 3 (La. App. 4 Cir. 6/13/12), 96

So.3d 638, 640).

On the trial of a peremptory exception, “[n]o evidence may be introduced at

any time to support or controvert the objection that the petition fails to state a cause

of action.” La. C.C.P. art. 931. Rather, “[i]n deciding an exception of no cause of

action a court can consider only the petition, any amendments to the petition, and

any documents attached to the petition.” Fertitta, 2020-0300, p. 7, 311 So.3d at

451 (quoting Green, 2017-0695, p. 5, 248 So.3d at 453). See also White, 2019-

10

0213, 2019-0214, p. 7, 281 So.3d at 819. “The grant of the exception of no cause

of action is proper when, assuming all well pleaded factual allegations of the

petition and any annexed documents are true, the plaintiff is not entitled to the

relief he seeks as a matter of law.” Id. This Court has explained how a court

reviews the petition in deciding an exception of no cause of action:

The exception [of no cause of action] is triable on the face of the
petition and, to determine the issues raised by the exception, each
well-pleaded fact in the petition must be accepted as true. Indus. Cos.
v. Durbin, 2002-0665, p. 6 (La. 1/28/03), 837 So.2d 1207, 1213. . . .
An exception of no cause of action should be granted only when it
appears beyond doubt that the plaintiff can prove no set of facts in
support of any claim which would entitle him to relief. Id. at p. 7, 837
So.2d at 1213; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007,
1018 (La. 1993). If the petition states a cause of action on any ground
or portion of the demand, the exception should generally be overruled.
Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d
1234, 1236 (La. 1993). Every reasonable interpretation must be
accorded the language used in the petition in favor of maintaining its
sufficiency and affording the plaintiff the opportunity of presenting
evidence at trial. Industrial Cos., [20]02-0665[,] p. 7, 837 So.2d at
1213.

Williams v. Wood, 2017-1049, p. 3 (La. App. 4 Cir. 10/31/18), 258 So.3d 834, 837-

38 (quoting Badeaux, 2005-0612, 2005-719, pp. 6-7, 929 So.2d at 1217). Further,

“[a]ny doubt must be resolved in the plaintiff[’s] favor.” Fertitta, 2020-0300, p. 7,

311 So.3d at 451 (quoting Green, 2017-0695, p. 5, 248 So.3d at 453). See also

White, 2019-0213, 2019-0214, p. 8, 281 So.3d at 819.

However, while the well-pleaded facts in the petition are accepted as true

and reasonable interpretation is afforded to the petition, “[i]f the grounds of the

objection raised through the [peremptory] exception cannot be [] removed [by

amendment of the petition], or if the plaintiff fails to comply with [an] order to

amend, the action, claim, demand, issue, or theory shall be dismissed.” La. C.C.P.

art. 934. Additionally, “[a] plaintiff may not merely state legal or factual

11

conclusions in the petition without setting forth facts that support the conclusions.”

Musa v. Musa, 2018-1066, p. 3 (La. App. 4 Cir. 4/3/19), 267 So.3d 1190, 1193

(citing Bibbins v. City of New Orleans, 02-1510, p. 5 (La. App. 4 Cir. 5/21/03), 848

So.2d 686, 691). “[M]ere conclusions of the plaintiff which are unsupported by

facts do not set forth a cause of action.” Fertitta, 2020-0300, p. 7, 311 So.3d at 451

(citing Green, 2017-0695, p. 5, 248 So.3d at 453-54). See also White, 2019-0213,

2019-0214, p. 8, 281 So.3d at 819.

Deprivation of Due Process

Mr. Cunningham asserts that his Petitions state a cause of action for

deprivation of due process. In particular, Mr. Cunningham asserts that his Petitions

allege that he did not receive notice of his March 2, 2016 disciplinary hearing and

that the hearing was held without him present. Mr. Cunningham contends that he

was not present because he was on authorized medical leave at the time of the

disciplinary hearing. Further, he alleges that his Petitions plead deprivation of due

process rights wherein they contain the allegation that the City through NOPD and

through certain City Employees, namely Shaun Ferguson, Ronal Serpas, and

Michael Harrison, “deprived [him] of his liberty right of employment and took

years of his salary without giving him due process to contest the reasons for his

termination.”

In response to Mr. Cunningham’s allegation that he suffered deprivation of

due process, the City argues that Mr. Cunningham raised his due process claims

before the Commission but failed to raise them when he previously appealed to this

Court. Therefore, the City asserts that Mr. Cunningham cannot raise his due

process claims anew in this appeal because they are subject to the principles of

issue preclusion.

12

The United States Constitution states that no state shall “deprive any person

of life, liberty, or property, without due process of law . . . .” U.S. Const. amend.

14, § 1. Further, the Louisiana Constitution provides that “[n]o person shall be

deprived of life, liberty, or property, except by due process of law.” La. Const. art.

1, § 2 (1974). Due process contains a substantive and a procedural aspect. Oliver v.

Orleans Par. Sch. Bd., 2014-0329, 2014-0330, pp. 34-35 (La. 10/31/14), 156 So.3d

596, 619. A violation of substantive due process occurs when someone is deprived

“of a constitutionally-protected property or liberty interest.” Id., 2014-0329, 2014-

0330, p. 35, 156 So.3d at 619-20 (quoting State v. Bazile, 2012-2243, p. 12 (La.

5/7/13), 144 So.3d 719, 730). A violation of procedural due process occurs when

someone does not receive “notice and an opportunity to be heard” prior to the

deprivation of a property or liberty interest. Id., 2014-0329, 2014-0330, p. 35, 156

So.3d at 620 (quoting Bazile, 2012-2243, p. 16, 144 So.3d at 732). The procedural

due process right of notice and opportunity “must be extended at a meaningful time

and in a meaningful manner.” Harris v. Dep’t of Police, 2012-0701, p. 9 (La. App.

4 Cir. 9/14/12), 125 So.3d 1124, 1129 (quoting Moore v. Ware, 2001-3341, p. 13

(La. 2/25/03), 839 So.2d 940, 949). “A due process claim in the context of civil

service employment depends upon an employee having a property right in

continued comparable employment.” Moore, 2001-3341, p. 12, 839 So.2d at 948

(quoting Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S.Ct. 1487, 84

L.Ed.2d 494 (1985)). “Tenured or classified civil service status is a property right

and cannot be taken away without due process.” Id.

In enacting La. R.S. 13:4231, the Louisiana Legislature codified an umbrella

concept of res judicata that “embraces the broad usage of the phrase ‘res judicata’

to include both claim preclusion ([traditional] res judicata) and issue preclusion

13

(collateral estoppel).” Jones v. Daimler N. Am., Inc., 2021-0504, 2021-0505, p. 3

(La. App. 4 Cir. 2/23/22), ___ So.3d ___, ___, 2022 WL 553425, at *4 (quoting

Maschek v. Cartemps USA, 2004-1031, p. 5 (La. App. 4 Cir. 2/16/05), 896 So.2d

1189, 1193).

Issue preclusion is codified in La. R.S. 13:4231(3). “[T]he three

requirements for issue preclusion are (1) a valid and final judgment; (2) identity of

the parties; and (3) an issue that has been actually litigated and determined if its

determination was essential to the prior judgment.” Global Marketing Sols., L.L.C.

v. Chevron U.S.A., Inc., 2018-1765, p. 10 (La. App. 1 Cir. 9/27/19), 286 So.3d

1054, 1061. Under “issue preclusion or collateral estoppel, once a court decides an

issue of fact or law necessary to its judgment, that decision precludes relitigation of

the same issue in a different cause of action between the same parties.” Williams v.

City of Marksville, 2002-1130, p. 3 (La. App. 3 Cir. 3/5/03), 839 So.2d 1129, 1131

(quoting Hudson v. City of Bossier, 33,620, p. 7 (La. App. 2 Cir. 8/25/00), 766

So.2d 738, 743). “Issue preclusion only can be invoked when all its essential

elements are present; and ‘each necessary element must be established beyond all

question.’” Jones, 2021-0504, 2021-0505, p. 3, ___ So.3d ___, ___, 2022 WL

553425, at *5 (quoting Kelty v. Brumfield, 1993-1142 p. 8 (La. 2/25/94), 633 So.2d

1210, 1215).

Mr. Cunningham asserted a due process cause of action before the

Commission during his appeal of his termination. In its October 17, 2017

judgment, the Commission observed that Mr. Cunningham “avers that he did not

have a meaningful opportunity to respond to the allegations against him.” The

commission then addressed Mr. Cunningham’s due process contention and found

that he received a meaningful opportunity to respond to the allegations against him

14

but chose not to be present at his March 2, 2016 disciplinary hearing on the advice

of counsel in order to invoke his Fifth Amendment right against self-incrimination.

The Commission concluded that Mr. Cunningham’s decision “does not change the

fact that NOPD offered [for him] to present a response to the allegations against

him through a pre-disciplinary hearing.” When Mr. Cunningham appealed the

commission’s judgment to this Court, he did not assign as error the Commission’s

finding regarding the lack of deprivation of his due process rights. As a result, the

three requirements for issue preclusion are satisfied. The first element is met by the

Commission’s October 17, 2017 judgment, which is a valid and final judgment.

The second element requires the parties in both proceedings to be identical: Mr.

Cunningham and the City were parties before the Commission and the trial court.

The third and final element is satisfied because the alleged deprivation of Mr.

Cunningham’s due process rights was actually litigated and determined in the

Commission’s proceedings, and its determination was essential to the prior

judgment. Mr. Cunningham’s opportunity to appeal this issue was when he brought

his prior appeal of the Commission’s judgment before this Court; and the

Commission’s finding regarding Mr. Cunningham’s deprivation of due process

claim became conclusive upon the expiration of time to appeal the Commission’s

October 17, 2017 judgment.10 To allow Mr. Cunningham’s deprivation of due

10
See La. C.C.P. art. 2087(A), which is titled “[d]elay for taking devolutive
appeal,” and provides:

A. Except as otherwise provided in this Article or by other law,
an appeal which does not suspend the effect or the execution of an
appealable order or judgment may be taken within sixty days of any of
the following:

15

process cause of action at this juncture would result in “relitigation of the same

issue in a different cause of action between the same parties.” Williams, 2002-

1130, p. 3, 839 So.2d at 1131 (quoting Hudson v. City of Bossier, 33,620, p. 7, 766

So.2d at 743).

Moreover, Mr. Cunningham did not sufficiently plead a cause of action for

deprivation of due process because he has failed to set forth facts that support his

contention that he did not receive notice of the March 2, 2016 disciplinary hearing

and has further failed to explain why his alleged status on medical leave prevented

him from attending the hearing or why he failed to request a motion to continue if

that were the case. See A.M.E. Disaster Recovery Servs., Inc. v. City of New

Orleans, 2010-1755 (La. App. 4 Cir. 8/24/11), 72 So.3d 454 (explaining that the

City abided by the due process opportunity requirement even though the appellant

declined to attend the hearing). Thus, the trial court correctly granted the Third

Exception of No Cause of Action with respect to Mr. Cunningham’s deprivation of

due process claim.

Retaliation

Next, Mr. Cunningham contends that his Petitions sufficiently state a cause

of action for retaliation. In support of his retaliation claim, Mr. Cunningham

asserted in his Petitions and in his brief to this Court:

When [Mr. Cunningham] engaged in the protected activity of
reporting [NOPD] [O]fficer Danny Wharton and other [NOPD]

(1) The expiration of the delay for applying for a new trial or
judgment notwithstanding the verdict, as provided by Article 1974
and Article 1811, if no application has been filed timely.

(2) The date of the mailing of notice of the court’s refusal to
grant a timely application for a new trial or judgment notwithstanding
the verdict, as provided under Article 1914.

16

officers to the independent police monitor for the lack of due process
afforded to [him] for complaints sustained against him and, as a result
of these complaints, he suffered [] the adverse employment action of
being terminated from his employment as a[n] [NOPD] officer while
on medical leave and without a hearing and a causal relationship
exists between his complaints about [Officer] Wharton and other
[NOPD] Officers and his termination.

In sum, Mr. Cunningham claims that his Petitions state a retaliation cause of action

because they provide that he suffered retaliation for reporting that his due process

rights were violated during his disciplinary proceedings.

Louisiana Law contains whistleblower statutes that “provide[] protection to

employees against reprisal from employers for reporting or refusing to participate

in illegal work practices.” Hale v. Touro Infirmary, 2004-0003, p. 6 (La. App. 4

Cir. 11/3/04), 886 So.2d 1210, 1214. Public employees who report or refuse to

participate in illegal practices may have a right of action against their employer

under two whistleblower statutes, namely La. R.S. 23:967 and La. R.S. 42:1169.

See Puig v. Greater New Orleans Expressway Comm’n, 2000-0924, p. 3 (La. App.

5 Cir. 10/31/00), 772 So.2d 842, 843 (holding “[w]e do not find [La.] R.S. 23:967

and [La.] R.S. 42:1169 to be mutually exclusive”). Each of these is discussed in

turn.

Louisiana Revised Statute 23:967,11 Louisiana’s anti-reprisal statute, states,

in pertinent 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.

11
Louisiana Revised Statute 23:967 is titled “[e]mployee protection from reprisal;
prohibited practices; remedies.”

17

(2) Provides information to or testifies before any public body
conducting an investigation, hearing, or inquiry into any violation of
law.

(3) Objects to or refuses to participate in an employment act or
practice that is in violation of law.

La. R.S. 23:967(A). This Court has previously determined “that the very specific

language referring to a ‘violation of law’” in La. R.S. 23:967 “manifests a desire

by the Louisiana legislature to only provide a remedy . . . [when the employer’s]

practices are in actual violation of law, and not simply practices disagreed with or

found distasteful by the employee.” Hale, 2004-0003, p. 8, 886 So.2d at 1215.

Regarding public employees and employers, La. R.S. 42:116912 is found in

the “Code of Governmental Ethics” section of the revised statutes. It provides, in

pertinent part:

Any public employee who reports to a person or entity of competent
authority or jurisdiction information which he reasonably believes
indicates a violation of any law or of any order, rule, or regulation
issued in accordance with law or any other alleged acts of impropriety
related to the scope or duties of public employment or public office
within any branch of state government or any political subdivision
shall be free from discipline, reprisal, or threats of discipline or
reprisal by the public employer for reporting such acts of alleged
impropriety.

La. R.S. 42:1169(A) (emphasis added). For a public employee to be protected from

discipline or reprisal, La. R.S. 42:1169 requires merely the reasonable belief that a

violation of the Code of Governmental Ethics has occurred, not an actual violation

of state law like La. R.S. 23:967 requires. Puig, 2009-0924, pp. 4-5, 772 So.2d at

844-45.

Mr. Cunningham claims that he suffered retaliation for reporting that his due

process rights were violated during his disciplinary proceedings. However, as

12
Louisiana Revised Statute 42:1169 is titled “[f]reedom from reprisal for
disclosure of improper acts.”

18

discussed previously, Mr. Cunningham is precluded from asserting a due process

cause of action per La. R.S. 13:4231; so his retaliation cause of action, which is

based on and dependent upon the alleged due process violation, is likewise

precluded.

Moreover, our de novo review of the Petitions reveals that Mr. Cunningham

has not sufficiently pled a retaliation cause of action by establishing either a

reasonable belief in a violation of the Code of Governmental Ethics under La. R.S.

42:1169(A) or an actual violation of law under La. R.S. 23:967(A). The alleged

violation is of Mr. Cunningham’s due process rights, but, as discussed, his

Petitions did not adequately plead a lack of notice and opportunity to support a

deprivation of due process cause of action. Therefore, the trial court correctly

granted the Third Exception of No Cause of Action with respect to Mr.

Cunningham’s retaliation claim.

Intentional Infliction of Emotional Distress

Further, Mr. Cunningham contends that his Petitions state a cause of action

for intentional infliction of emotional distress. In particular, he contends that his

Petitions allege that “[t]he actions of the named defendants was [sic] extreme and

outrageous and the emotional distress suffered by [Mr. Cunningham] was severe,

and each of the named defendants desired to inflict severe emotional distress or

knew that severe emotional distress would be certain or substantially certain to

result from their conduct.”

In Louisiana, “[e]very act whatever of man that causes damage to another

obliges him by whose fault it happened to repair it.” La. C.C. art. 2315. Under

Louisiana jurisprudence, to recover for intentional infliction of emotional distress,

a plaintiff must establish that (1) the defendant’s conduct was extreme and

19

outrageous; (2) the plaintiff suffered severe emotional distress; and (3) the

defendant desired to inflict severe emotional distress or knew that it would be

certain or substantially certain to result from the conduct. White v. Monsanto, 585

So.2d 1205, 1209 (La. 9/9/91). See also Prest v. La. Citizens Prop. Ins. Corp.,

2012-0513, p. 13 (La. 12/4/12), 125 So.3d 1079, 1089 n.5. The nature of the

conduct must be “so outrageous in character, and so extreme in degree” that it goes

“beyond all possible bounds of decency, and [is] regarded as atrocious and utterly

intolerable in a civilized community.” White, 585 So.2d at 1209. “[M]ere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities” do not

result in liability for intentional infliction of emotional distress. Id. In addition,

“[o]ne who by extreme and outrageous conduct intentionally causes severe

emotional distress to another is subject to liability for such emotional distress, and

if bodily harm to the other results from it, for such bodily harm.” Id.

Regarding intentional infliction of emotional distress in the workplace, the

Louisiana Supreme Court has explained:

A plaintiff’s status as an employee may entitle him to a greater degree
of protection from insult and outrage by a supervisor with authority
over him than if he were a stranger. Hall [v. May Dep’t Stores Co.,
292 Or. 131, 637 P.2d 126 (1981)], Contreras [v. Crown Zellerbach
Corp., 88 Wash.2d 735, 565 P.2d 1173 (1977)], and Alcorn [v. Anbro
Eng’g, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970)].

On the other hand, conduct which may otherwise be extreme
and outrageous, may be privileged under the circumstances. Liability
does not attach where the actor has done no more than to insist upon
his legal rights in a permissible way, even though he is aware that
such insistence is certain to cause emotional stress. [RESTATEMENT
(SECOND) OF TORTS § 46 cmt. g (AM. LAW INST. 1965)]. Thus,
disciplinary action and conflict in a pressure-packed workplace
environment, although calculated to cause some degree of mental
anguish, is not ordinarily actionable. Recognition of a cause of action
for intentional infliction of emotional distress in a workplace
environment has usually been limited to cases involving a pattern of
deliberate, repeated harassment over a period of time.

20

White, 585 So.2d at 1210.

For example in Mederos v. St. Tammany Parish Government, the plaintiff,

Sheryl Mederos, worked in the human resources department for the St. Tammany

Parish Government between 1982 and 2013. 2015-1602, p. 2 (La. App. 1 Cir.

7/11/16), 199 So.3d 30, 32. In 2013, one of the defendants, Leslie Montgomery,

became the new human resources director for the Parish. Id. Shortly after Ms.

Montgomery became the human resources director, she suspended the plaintiff for

“a few days off to decide if [the plaintiff] was going to get on board with the

changes being made in the structure of the department”; chastised her for having

lunch with an IRS auditor during a time when the Parish was being audited by the

IRS; and issued a written reprimand to the plaintiff. Id., 2015-1602, pp. 2, 11, 199

So.3d at 32, 37. After the trial court granted summary judgment in favor of Ms.

Montgomery regarding the plaintiff’s assertion of intentional infliction of

emotional distress, the First Circuit Court of Appeal affirmed and held that Ms.

Montgomery’s actions “represent[] nothing more than . . . insisting upon her legal

rights as the Human Resources director and initiating disciplinary action, which is

not regarded as actionable.” Id., 2015-1602, p. 11, 199 So.3d at 38.

Likewise, in his Petitions, Mr. Cunningham has not supported “a pattern of

deliberate, repeated harassment over a period of time” in the workplace or conduct

on the part of the City that supports an intentional infliction of emotional distress

cause of action. See White, 585 So.2d at 1210. Rather, the City’s actions in

arresting Mr. Cunningham and conducting disciplinary proceedings following his

involvement in a domestic dispute were within the City’s legal rights to discipline

Mr. Cunningham as an employee for violating NOPD’s policy regarding the off-

21

duty use of alcohol. See Mederos, p. 11, 199 So.3d at 38. Mr. Cunningham has

failed to plead specific facts that demonstrate (1) that the City’s conduct was

extreme and outrageous; (2) that he suffered severe emotional distress; and (3) that

the City desired to inflict severe emotional distress or knew that it would be certain

or substantially certain to result from the conduct. See White, 585 So.2d at 1209;

Prest, 2012-0513, p. 13, 125 So.3d at 1089 n.5. Rather, Mr. Cunningham’s

Petitions contain conclusory statements, not specific facts to support his assertions,

and such conclusory statements are insufficient to support his intentional infliction

of emotional distress cause of action. See Musa, 2018-1066, p. 3, 267 So.3d at

1193; Fertitta, 2020-0300, p. 7, 311 So.3d at 451; White, 2019-0213, 2019-0214,

p. 8, 281 So.3d at 819. Thus, the trial court correctly granted the Third Exception

of No Cause of Action regarding Mr. Cunningham’s intentional infliction of

emotional distress claim.

Defamation

Last, Mr. Cunningham asserts that his Petitions state a cause of action for

defamation. In briefing to this Court, he contends that this claim “was supported by

the assertion that all actions of each of the named defendants was undertaken to

ruin Mr. Cunningham’s reputation and good name. Moreover, the false and

defamatory statement[s] concerning Mr. Cunningham were made through out his

disciplinary process at which he was not permitted to be present.” Additionally,

Mr. Cunningham points to an excerpt from his Petitions, which states that the City

and NOPD slandered and damaged his reputation by “prompting other department

employees to manufacture evidence and reasons to racially or otherwise

discriminate and to assist in the groundless disciplinary charges made against”

him. In his brief to this Court, Mr. Cunningham also repeats the assertion from his

22

Petitions that the City and NOPD slandered his reputation “by intentionally

denigrating [him] to other persons, employees[,] and superiors prior to and/or after

his wrongful termination [].”

Mr. Cunningham’s purported defamation cause of action emanates from La.

C.C. art. 2315.13 Defamation is a tort that involves “the invasion of a person’s

interest in his or her reputation and good name.” Johnson v. Purpera, 2020-01175,

p. 11 (La. 5/13/21), 320 So.3d 374, 386 (citing Kennedy v. Sheriff of E. Baton

Rouge, 2005-1418, p. 4 (La. 7/10/06), 935 So.2d 669, 674; Costello v. Hardy,

2003-1146, p. 12 (La. 1/21/04), 864 So.2d 129, 139). A defamatory

communication is one that “tends to harm the reputation of another so as to lower

the person in the estimation of the community or to deter others from associating

or dealing with the person.” Trentecosta v. Beck, 1996-2388, p. 10 (La. 10/21/97),

703 So.2d 552, 559 (citing RESTATEMENT (SECOND) OF TORTS § 559 cmt. e (AM.

LAW. INST. 1977)). A plaintiff must establish four elements to succeed in a

defamation claim, namely (1) a false and defamatory statement concerning

another; (2) an unprivileged publication to a third party; (3) fault (negligence or

greater) on the part of the publisher; and (4) resulting injury. Johnson, 2020-01174,

p. 11, 320 So.3d at 386-87 (citing Kennedy, 2005-1418, p. 4, 935 So.2d at 674;

Costello, 2003-1146, p. 12, 864 So.2d at 139; RESTATEMENT (SECOND) OF TORTS §

558 (AM. LAW. INST. 1977)). If a plaintiff cannot establish even one of these

elements, then the defamation cause of action fails. Kennedy, 2005-1418, p. 16,

935 So.2d at 681.

13
Louisiana Civil Code Article 2315 states that “[e]very act whatever of man that
causes damage to another obliges him by whose fault it happened to repair it.”

23

Privilege is a defense to defamation, and statements made by law

enforcement officers are protected from defamation claims by a qualified privilege

during an ongoing investigation. Kennedy, 2005-1418, p. 16, 935 So.2d at 681;

Dyas v. Shreveport Police Dep’t, 48,804, pp. 11 (La.App. 2 Cir. 2/26/14), 136

So.3d 897, 905 (citing Trentecosta, 1996-2388, pp. 19-20, 703 So.2d at 564). “The

doctrine of privilege rests upon the notion that sometimes, as a matter of public

policy, in order to encourage the free communication of views in certain defined

instances, one is justified in communicating defamatory information to others

without incurring liability.” Kennedy, 2005-1418, p. 16, 935 So.2d at 681 (citing

Toomer v. Breaux, 146 So.2d 723, 725 (La. App. 3 Cir. 1962)). Privileged

communications are divided into two general classes: (1) absolute; and (2)

conditional or qualified. Protected by a conditional or qualified privilege, officers

are “allowed to report the fact of a criminal investigation and an arrest without fear

of a defamation action if the person is cleared of the charges,” but “an officer

cannot add additional injurious statements that the officer had no reason to believe

were true.” Trentecosta, 1996-2388, pp. 19-20, 703 So.2d at 564. Assertion of the

privilege has the effect of “rebut[ting] the plaintiff’s allegations of fault and . . .

plac[ing] the burden of proof on the plaintiff to establish abuse of the privilege.”

Dyas, 48,804, pp. 11, 136 So.3d at 905. The privilege is abused if one (a) knows

the matter to be false, or (b) acts in reckless disregard as to its truth or falsity.

Trentecosta, 1996-2388, p. 20, 703 So.2d at 564, n.16. Therefore, to support a

defamation cause of action where a defendant is protected by a qualified privilege,

a plaintiff must prove: (1) a false and defamatory statement concerning another; (2)

an unprivileged publication to a third party; (3) fault (negligence or greater) on the

part of the publisher; (4) resulting injury; (5) that the defendant knew the matter to

24

be false; and (6) that the defendant acted in reckless disregard as to its truth or

falsity. Johnson, 2020-01174, p. 11, 320 So.3d at 386-87; Trentecosta, 1996-2388,

p. 20, 703 So.2d at 564, n.16.

Our de novo review of the Petitions reveals that Mr. Cunningham has not set

forth facts to support his defamation cause of action. Notably, the Petitions do not

establish the first element of a defamation cause of action because they do not

specify (1) the false and defamatory statements that the City or the City Employees

allegedly made concerning Mr. Cunningham. Because the failure of a plaintiff to

establish even one of the defamation elements is fatal to his claim, Mr.

Cunningham’s Petitions do not support a defamation cause of action. Kennedy,

2005-1418, p. 16, 935 So.2d at 681. Moreover, we note that Mr. Cunningham also

failed to plead the remaining defamation elements and the elements to overcome

the qualified privilege that the City and the City Employees would have received in

investigating Mr. Cunningham during his disciplinary proceedings: he has not

sufficiently pled facts to establish (2) an unprivileged publication to a third party;

(3) fault (negligence or greater) on the part of the publisher; (4) resulting injury;

(5) that the City or the City Employees knew the matter to be false; and (6) that the

City or the City Employees acted in reckless disregard as to the matter’s truth or

falsity. Again, Mr. Cunningham’s Petitions merely provide conclusory statements

without any factual support. See Musa, 2018-1066, p. 3, 267 So.3d at 1193;

Fertitta, 2020-0300, p. 7, 311 So.3d at 451; White, 2019-0213, 2019-0214, p. 8,

281 So.3d at 819. Thus, as Mr. Cunningham’s Petitions fail to establish the

elements of defamation and the factors necessary to overcome the qualified

privilege held by law enforcement, we find that the trial court correctly granted the

25

Third Exception of No Cause of action regarding Mr. Cunningham’s defamation

claim.

Claims against City Employees in Their Individual Capacity

Mr. Cunningham also asserts causes of action against the City Employees in

their individual capacities, and he argues that his Petitions sufficiently plead those

causes of action. In support, he points to the following excerpt from his First

Amended Petition:

[T]he intentional and wrongful actions of [NOPD] Public Integrity
Bureau Sergeant Arlen Barnes, [NOPD] Public Integrity Bureau
Lieutenant Derek Frick, [NOPD] Public Integrity Bureau Chief
Arlinda Westbrook, Deputy Chief Randy Mushatt, [NOPD] Public
Integrity Bureau Sergeant Danny Wharton and [NOPD] Public
Integrity Bureau Lieutenant Doc Watson damaged Mr. Cunningham’s
professional character and reputation. The plaintiff’s due process
rights under the Louisiana Constitution were violated because the City
of New Orleans through [NOPD] and Superintendent Shaun
Ferguson, former [NOPD] Superintendent Ronal Serpas[,] and former
[NOPD] Superintendent Michael Harrison deprived the plaintiff of his
liberty right of employment and took years of his salary without
giving him due process to contest the reasons for his termination.

Mr. Cunningham also notes that in his First Amending Petition he alleged that

prior to his termination, each of the City employees prevented him from securing

employment and/or interfered with him securing employment with any other law

enforcement agency by refusing to release his personnel records when requested

and/or by maintaining integrity complaints.

The law provides a “distinction between personal- and official-capacity

action suits.” Kentucky v. Graham, 473 U.S. 159, 165, 105 S.Ct. 3099, 3105, 87

L.Ed.2d 114 (1985). An official-capacity suit constitutes “another way of pleading

against an entity of which an officer is an agent.” Id. (citing Monell v. New York

City Dep’t of Soc. Servs., 436 U.S. 658, 690 n.55, 98 S.Ct. 2018, 2035 n.55, 56

L.Ed.2d 611 (1978)). By contrast, “[p]ersonal or individual capacity suits seek to

26

impose personal liability upon a government official for actions [the government

official] takes under color of state law causing the deprivation of a constitutional

right.” Driscoll v. Stucker, 2004-0589, p. 27 (La. 1/19/05), 893 So.2d 32, 52 (citing

Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 1974; Graham,

473 U.S. 159; Hafer v. Melo, 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301 (1991)).

See also Mederos, 2015-1602, p. 9, 199 So.3d 30, 36-37. “[T]o state a cause of

action against [a government official] in his individual capacity, [a plaintiff] must

show that the face of the petition, taking all well-pleaded facts as true, alleges that

the [government official] acted under color of state law to deprive [the plaintiff] of

a constitutional right.” Harvey v. State, 2014-0035, 2014-0156, 2014-0977, 2014-

0978, 2014-0979, pp. 14-15 (La. App. 4 Cir. 12/16/15), 183 So.3d 684, 696.

The only constitutional right that Mr. Cunningham alleged the City

Employees violated is his right to due process in that he contends the City

Employees did not provide him with an opportunity to contest his termination.

However, as previously discussed, Mr. Cunningham’s deprivation of due process

cause of action is precluded per La. R.S. 13:4231; so his claims against the City

Employees in their individual capacity for deprivation of due process, which stem

from the same alleged violation of the opportunity aspect of due process, are

likewise precluded. Moreover, we note that the accusations against the City

Employees in Mr. Cunningham’s Petitions merely provide conclusory statements

without any factual support. See Musa, 2018-1066, p. 3, 267 So.3d at 1193;

Fertitta, 2020-0300, p. 7, 311 So.3d at 451; White, 2019-0213, 2019-0214, p. 8,

281 So.3d at 819. Accordingly, the trial court correctly granted the Third

Exception of No Cause of Action with respect to the claims against the City

Employees in their individual capacities.

27

DECREE

For the foregoing reasons, the trial court’s October 15, 2020 judgment,

granting the Third Exception of No Cause of Action, is affirmed.

AFFIRMED

28