Riley v. Cantrell

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

WARREN RILEY CIVIL ACTION

v. NO. 19-13950

LATOYA CANTRELL, ET AL. SECTION "F"

ORDER AND REASONS

Before the Court is the defendants’ motion for summary

judgment. For the reasons that follow, the motion is GRANTED in

part and DENIED in part.

Background

This litigation arises from a politician’s unkept promise.

When she was Mayor-Elect, Latoya Cantrell reneged on her offer to

employ Warren Riley as Director of Homeland Security and Public

Safety in her incoming administration. Mr. Riley accepted the

offer, signed an employment agreement, and passed a background

check. And, knowing that Riley had resigned from his position

with the Federal Emergency Management Agency in Georgia, Cantrell

withdrew the offer just before he was scheduled to assume the

position, ostensibly capitulating to two constituents whom

allegedly expressed opposition to Mr. Riley serving as Director

“due to his actions as Superintendent of the New Orleans Police

Department in the aftermath of Hurricane Katrina” (reportedly due

to the now-infamous Danziger Bridge tragedy). By this lawsuit,

Mr. Riley seeks to hold Mayor Cantrell and the City accountable

for the damages he incurred when he relied on her reneged promise

to employ him.

Warren Riley joined the New Orleans Police Department in 1981.

He served in various “unclassified” and “at-will” positions there

for over 29 years. He served as Deputy Chief and Assistant Chief,

and, most notably, was promoted to Superintendent during the

aftermath of Hurricane Katrina. After he retired in 2010, Riley

became a contractor for the U.S. State Department. He was deployed

to Haiti to assess the collapse of the criminal justice system

following the 2010 earthquake. He then reported to Sydney,

Australia and Prague, Czech Republic for disaster preparedness

evaluations. In 2012, Mr. Riley was recruited by the Federal

Emergency Management Agency and in 2013, he received top secret

security clearance from the U.S. Department of Homeland Security.

While with FEMA, he served as the lead federal official

coordinating federal disaster response and recovery operations 15

times under the Obama and Trump Administrations. In 2017, Riley

was living just outside of Atlanta, Georgia working at-will for

FEMA.

During her campaign seeking to be elected Mayor of New

Orleans, in April 2017, LaToya Cantrell called Mr. Riley and asked

that he share his thoughts on improving the NOPD, which Cantrell

indicated would be a central issue in her mayoral campaign. He

did so. Three months later in July 2017, Cantrell called Mr. Riley

again and asked if he would accept the position of Homeland

Security Director for New Orleans if she was elected Mayor. He

said that he would consider such an offer if it was made.

Eventually, it was.

On November 18, 2017, LaToya Cantrell was elected to serve as

Mayor of the City of New Orleans. Almost six months later, on May

7, 2018, her inauguration was held.

Meanwhile, during the transition period between her election

and swearing-in, Mayor-Elect Cantrell started assembling a team of

individuals to serve in various positions in her administration.1

On April 5, 2018, Mr. Riley applied to serve as Director of the

New Orleans Department of Homeland Security and Public Safety; he

was interviewed shortly thereafter, traveling at his own expense

from Atlanta to New Orleans to interview. At the time he was being

considered to serve as City Director of Homeland Security, Mr.

Riley was living in Atlanta, Georgia and employed by the Federal

1 According to Mr. Riley, Cantrell sent employment offers by letter

to each individual she sought to employ in her administration; and

all of them remain working in her administration. Except Mr.

Riley. His offer was unilaterally withdrawn before he began his

service as Director. This litigation ensued because he had already

accepted the offer and tendered his resignation for his then-

present job with FEMA to become Director.

Emergency Management Agency. During the interview with the Mayor-

Elect, Mr. Riley informed Cantrell that his salary requirement was

a minimum of $180,000 per year for a minimum of two years, with a

pay raise to be awarded at the start of his third year if his job

performance was satisfactory. “I can do that,” Cantrell said.

She also advised that the position included the use of a City-

owned vehicle and a fuel card. Mayor-Elect Cantrell and Mr. Riley

shook hands in agreement.

After a series of interviews, on April 22, 2018, Mayor-Elect

Cantrell wrote to Mr. Riley, offering him the position for an

annual salary of $180,000. The letter states:

I am pleased to offer you the unclassified position of

Director of the Public Safety and Homeland Security for

the City of New Orleans. This position is of “at-will”

service to the City and without privilege of Civil

Service standing.

The salary for this position is herein offered at

$180,000 annually. This salary is paid bi-weekly and is

subject to applicable federal and state withholdings.

The City offers a mandatory pension plan, along with

optional medical, dental and vision health care plan,

life insurance, various voluntary deferred compensation

plans, and other benefits.

This offer is conditional upon the successful completion

of a background check and drug screening. Upon your

confirmation and acceptance of this offer of employment,

background screening will commence. If you accept this

offer, please indicate below and complete the attached

background check authorization....

The letter is signed by LaToya Cantrell, Mayor-Elect and then

states: “To accept this job offer, please sing and date below.

Return via email to [email address].”2

That same day, Mr. Riley accepted the offer of employment; he

signed and dated the April 22, 2018 offer letter and completed the

attached background check authorization form as instructed. Upon

receiving confirmation that his signed acceptance had been

received, on April 23, 2018, Mr. Riley tendered his resignation to

FEMA, to be effective May 4, 2018. Mr. Riley would not have

resigned from FEMA unless he had received and accepted the offer

of employment from Cantrell; Cantrell knew that Mr. Riley would

provide notice of his resignation to FEMA before he came to New

Orleans to begin his job in her administration.

On April 24, 2018, Cantrell told Mr. Riley that she planned

to publicly announce his appointment as the City’s Director of

Homeland Security and Public Safety “next week.” Cantrell told

Mr. Riley to be in New Orleans May 4, 2018 because his start date

was May 7.

On April 30, 2018, Mr. Riley interviewed Col. Sneed, and he

met with and interviewed Colin Arnold, Steven Gordon, the Director

2 It is undisputed that the letter is silent concerning start date,

end date, or duration of employment; that Mr. Riley did not receive

any written specification concerning a term of employment; and Mr.

Riley testified that he understood the position to be at-will and

unclassified without civil service protections.

of the Orleans Parish Communications District. On May 2, 2018,

Mr. Riley attended a meet and greet in the City Council Chambers,

where he was introduced as the incoming Director of the Public

Safety and Homeland Security for the City of New Orleans. At the

end of the meet and greet, Mr. Riley held a meeting with New

Orleans Police Superintendent, Michael Harrison; Fire Chief Mike

McConnell; newly hired Crime Commissioner, Tynisha Stevens; and

the acting director of New Orleans Homeland Security and Emergency

Preparedness, Colin Arnold.

Moments later, Cantrell called Mr. Riley, instructing him to

meet her in an office behind the City Council Chamber inside City

Hall. There, she advised Mr. Riley that his appointment had been

“put on pause” and she instructed him not to attend the press

conference that had been called for the purpose of announcing the

members of the incoming administration’s public safety leadership

team, including Mr. Riley’s position as Director of Public Safety

and Homeland Security. Cantrell told Riley, “I’ll get back with

you.”

On May 6, 2018, Mayor-Elect Cantrell sent Mr. Riley a text

message, advising that he was welcome to attend her inaugural ball

on May 7, 2018. In the same message, she said “We will put this

to bed this week.”

On May 14, 2018, Mr. Riley was contacted by a member of Mayor

Cantrell’s staff and instructed to report to the Mayor’s office on

May 15, 2018. Mr. Riley believed the purpose of the meeting was

for him to take the oath of office as the Director of Public Safety

and Homeland Security for the City of New Orleans. During that

meeting, however, Mayor Cantrell told Mr. Riley with irresolute

timidity that “there are some very powerful people who live uptown

that do not support you for the position.” After a brief

conversation, Mayor Cantrell advised Mr. Riley that she would “take

care of this situation on Friday [May 19, 2018].”3

On May 16, 2008, Mayor Cantrell called Mr. Riley, stated

“Chief I can’t do it. I’m sorry. I will not be able to appoint

you. I will have to make you whole. I am sorry[;]” then, she hung

up. Almost immediately after she hung up the phone, a press

release issued that lauded Mr. Riley’s qualifications for the

position, but nonetheless announced that he would not be appointed

as the next Director of Homeland Security and Public Safety.4

3 It is undisputed that, at some point after offering him the job,

and him accepting, but before he started in the appointed position,

Cantrell changed her mind about Riley serving as the City’s

Director of Homeland Security. On May 2, 2018, she informed Riley

that she had to put his appointment on hold due to, as her attorneys

put it, “public outcry,” or because “various stakeholders

expressed their opposition [to the appointment] due to his actions

as Superintendent of [NOPD] in the aftermath of Hurricane Katrina.”

At some point between her inauguration on May 7 and May 16, 2018,

Mayor Cantrell withdrew the offer of employment and informed Riley

about her decision. According to Mayor Cantrell, her decision not

to appoint Riley was made when she considered his “overall

credibility in the community.”

4 Mayor Cantrell considered Mr. Riley to be uniquely qualified for

the position; she stated that his “qualifications are undeniable.”

Yet she rescinded his appointment. She expected that Mr. Riley

This lawsuit followed. Invoking the Court’s diversity

jurisdiction, on November 27, 2019, Riley sued the Mayor and the

City, alleging detrimental reliance, breach of contract, and

unjust enrichment. Mr. Riley alleges that Cantrell is liable in

her official capacity as Mayor, that the City is vicariously

liable, and, in the alternative, that Cantrell is liable in her

individual capacity for the alleged acts, omissions, and resulting

damages including lost earnings, lost employment benefits, lost

retirement/pension benefits, out of pocket travel expenses,

embarrassment and humiliation, and legal fees and costs. Mr. Riley

claims that he has been unable to secure replacement employment

that is equivalent to what he would have earned in New Orleans or

if he had not resigned from FEMA. Mr. Riley indicates that, at

trial, he will prove that he has suffered a substantial economic

loss as a direct result of Cantrell’s failure to fulfill the

employment agreement.

would be hired after he executed the employment letter. Colin

Arnold, Jerry Sneed, and Stephen Gordon will testify that, based

on their in-person meetings, they believed that Mr. Riley was the

incoming Director of Homeland Security and Public Safety. For his

part, Mr. Riley understood that Cantrell was excited about hiring

him given his considerable emergency management experience. Mr.

Riley held at-will positions for the last 37+ years and has never

been fired by one of his employers. Mr. Riley “had no reason to

believe that the mayor would not honor her word, that she would

not follow through when she requested that [he] come back.... And

I trusted the mayor, I believed in the mayor.”

The Mayor and the City now seek summary relief dismissing Mr.

Riley’s claims.

I.

Summary judgment is proper if the record discloses no genuine

dispute as to any material fact and the movant is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a). A dispute is

genuine if “the evidence is such that a reasonable jury could

return a verdict for the non-moving party.” Anderson v. Liberty

Lobby, 477 U.S. 242, 248 (1986). A fact is material if it “might

affect the outcome of the suit.” Id. at 248.

If the non-movant will bear the burden of proof at trial, the

movant “may merely point to an absence of evidence, thus shifting

to the non-movant the burden of demonstrating by competent summary

judgment proof that there is an issue of material fact warranting

trial.” In re La. Crawfish Producers, 852 F.3d 456, 462 (5th Cir.

2017)(citation omitted).

The mere argued existence of a factual dispute does not defeat

an otherwise properly supported motion. See Anderson, 477 U.S. at

248. Nor do “[u]nsubstantiated assertions, improbable inferences,

and unsupported speculation[.]” Brown v. City of Houston, Tex.,

337 F.3d 539, 541 (5th Cir. 2003); Hathaway v. Bazany, 507 F.3d

312, 319 (5th Cir. 2007)("[T]he nonmoving party cannot defeat

summary judgment with conclusory allegations, unsubstantiated

assertions, or only a scintilla of evidence."). The non-moving

party must come forward with competent evidence, such as affidavits

or depositions, to buttress his claims. Donaghey v. Ocean Drilling

& Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Hearsay

evidence and unsworn documents that cannot be presented in a form

that would be admissible in evidence at trial do not qualify as

competent opposing evidence. Martin v. John W. Stone Oil Distrib.,

Inc., 819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).

Ultimately, to avoid summary judgment, the non-movant “must go

beyond the pleadings and come forward with specific facts

indicating a genuine issue for trial.” LeMaire v. La. Dep’t of

Transp. & Dev., 480 F.3d 383, 387 (5th Cir. 2007).

In deciding whether a fact issue exists, the Court views the

facts and draws all reasonable inferences in the light most

favorable to the non-movant. See Midwest Feeders, Inc. v. Bank of

Franklin, 886 F.3d 507, 513 (5th Cir. 2018). And the Court

“resolve[s] factual controversies in favor of the nonmoving

party,” but “only where there is an actual controversy, that is,

when both parties have submitted evidence of contradictory facts.”

Antoine v. First Student, Inc., 713 F.3d 824, 830 (5th Cir. 2013)

(citation omitted).

The Court must not evaluate the credibility of witnesses on

a paper record, nor may it weigh evidence. When considering summary

judgment motions prior to a bench trial, however, the Court in

non-jury cases “has somewhat greater discretion to consider what

weight it will accord the evidence” and “to decide that the same

evidence, presented to him . . . as a trier of fact in a plenary

trial, could not possibly lead to a different result.” Jones v.

United States, 936 F.3d 318, 321-22 (5th Cir. 2019)(citations,

internal quotations omitted).

II.

The Mayor and the City seek summary relief dismissing as a

matter of law Mr. Riley’s breach of contract, detrimental reliance,

and unjust enrichment claims as well as the vicarious liability

theory of recovery and Mr. Riley’s claim to recover attorney’s

fees.

A.

Jurisdiction is based on diversity, so the Court applies the

substantive law of the forum -- Louisiana. See Boyett v. Redland

Ins. Co., 741 F.3d 604, 607 (5th Cir. 2014)(citing Erie R.R. Co.

v. Tompkins, 304 U.S. 64 (1938)).5

5 Despite that Mr. Riley alleges that he is a Georgia resident, no

party suggests that this contact implicates an issue-specific

choice-of-law analysis. Lonzo v. Lonzo, 17-549, p. 12 (La. App.

4 Cir. 11/15/17); 231 So. 3d 957, 966 (“A choice of law issue is

presented whenever a suit presents ‘a foreign element such as a

nonresident party or an event outside the forum.’”). Likewise, no

party briefs whether the Court must make an informed Erie guess as

to how the Louisiana Supreme Court would resolve the detrimental

reliance issue presented. More comprehensive briefing shall assist

the Court before trial.

B.

Breach of Contract

Mr. Riley alleges that the Mayor breached the parties’

employment contract when she withdrew or rescinded his appointment

as Director.6 Invoking Louisiana’s at-will employment doctrine,

the defendants seek summary relief dismissing the plaintiff’s

breach of contract claim. Mr. Riley counters that Mayor Cantrell

failed to comply with her duty to act in good faith in employment

matters. Given that there is no dispute that the parties’

employment agreement was at-will, Mr. Riley’s breach of contract

theory of recovery (properly considered) fails as a matter of law.

“A contract is formed by the consent of the parties

established through offer and acceptance.” La. Civ. Code art.

1927. Under Louisiana law, a breach-of-contract claim has three

elements: “‘(1) the obligor’s undertaking an obligation to

perform, (2) the obligor failed to perform the obligation, and (3)

the failure to perform resulted in damages to the obligee.’”

IberiaBank v. Broussard, 907 F.3d 826, 835 (5th Cir. 2018) (quoting

6 Mr. Riley did not allege a breach of contract claim per se in

his complaint; however, he mentions this theory of recovery along

with the parties’ purported employment contract, ostensibly

intertwining his breach of contract cause of action with the

detrimental reliance cause of action. The defendants assume that

Mr. Riley alleges a breach of contract theory of recovery. Thus,

the Court considers the defendants’ argument that it fails as a

matter of law.

Favrot v. Favrot, 1108-09, pp. 14-15 (La. App. 4 Cir. 2011); 68

So. 3d 1099, 1108-1109).

Under Louisiana law, there are two types of employment

contracts: one for a fixed term and one terminable at the parties’

will.7 “A contract of unspecified duration may be terminated at

the will of either party by giving notice, reasonable in time and

form, to the other party.” La. Civ. Code art. 2024. “A man is at

liberty to dismiss a hired servant attached to his person or

family, without assigning any reason for so doing. The servant is

also free to depart without assigning any cause.” La. Civ. Code

art. 2747. In other words, when an employment arrangement is at-

will, employers may terminate employees for any reason at any time

as long as it is not an illegal reason, such as race

discrimination. See Quebedeaux v. Dow Chemical Co., 820 So. 3d

542, 545 (La. 2002). When one is employed at-will, generally there

7 The state high court has observed:

[E]mployment contracts are either limited term or

terminable at will. Under a limited term contract[,]

the parties agree to be bound for a certain period during

which the employee is not free to depart without

assigning cause nor is the employer at liberty to dismiss

the employee without cause. When a contract does not

provide for a limited term, an employer can dismiss the

employee at any time and for any reason without incurring

liability.

Read v. Willwoods Cmty., 14-1475 (La. 3/14/15), 165 So. 3d 883,

887.

can be no breach of an employment contract. See Deus v. Allstate

Ins. Co., 15 F.3d 506, 517 (5th Cir. 1994)(citation

omitted)(“Unless the employment contract is for a definite period

of time, there is no enforceable action for damages[,] as the

contract can be terminated at the will of either the employee or

the employer.”); Ivory v. M.L. Smith, Jr. L.L.C., No. 15-2022,

2015 WL 9074730, at *3 (W.D. La. Oct. 14, 2015)(“Defendant could

have terminated Plaintiff’s employment after one day, or even less

than one day, much less a week, and he still would not have had a

claim under a breach of contract theory.”).

Here, there is no dispute that Cantrell and Riley agreed that

he would serve as Director of Homeland Security for an indefinite

period and, therefore, the parties had an at-will employment

arrangement. Mr. Riley identifies no contractual obligation which

the Mayor breached. The Mayor could fire Mr. Riley for any reason

and not breach the at-will employment contract. Putting aside

federal and state statutory exceptions proscribing certain reasons

for dismissing an at-will employee (none of which are implicated

here), “there are no broad policy considerations creating

exceptions to employment at will and affecting relations between

employer and employee.” Quebedeaux, 820 So. 2d at 545-46 (internal

quotation, citation omitted).

Given the at-will employment arrangement specified in the

contract, insofar as the plaintiff’s theory is that the defendants

are liable for breach of contract based on wrongful discharge,

this theory fails as they were “free to terminate [his employment]

without incurring liability for the discharge” on a breach of

contract theory. See id. In other words: the at-will employment

doctrine precludes an employee’s recovery of damages for wrongful

discharge under a breach of contract theory. Mr. Riley identifies

no contractual or other provision that limited the Mayor’s power

to treat him as an at-will employee. Indeed, any asserted limits

on the employer’s power to terminate an at-will employee are

generally invalid. See Deus, 15 F.3d at 517; See also Filson v.

Tulane Univ., No. 09-7451, 2010 WL 5477189, at *3 (E.D. La. Dec.

29, 2010)(Engelhardt, J.)(citation omitted) (“If the employment

contract is an at-will agreement, an employee’s termination need

not be accurate, fair, or reasonable, and there does not have to

be any reason at all for termination.”).

That the Louisiana Civil Code imposes a duty to perform

obligations in good faith does not alter the at-will feature of

the parties’ employment agreement. To be sure, “[c]ontracts must

be performed in good faith.” See La. Civ. Code art. 1983. “As a

general rule, Louisiana recognizes an implied covenant of good

faith and fair dealing in every contract.” Whitney Bank v. SMI

Companies Global, Incorporated, 949 F.3d 196, 210 (5 Cir.

2020)(citations omitted)(observing that “[t]he Civil Code defines

good faith by reference to its ‘breach’: ‘An obligor is in bad

faith if he intentionally and maliciously fails to perform his

obligation.’ La. Civ. Code art. 1997 cmt. b.”). Absent a breach

of contract, however, there is no independent claim for breach of

the implied covenant of good faith. See id. (because Whitney did

not breach the terms of either loan, any claim regarding its

violation of the duty of good faith fails);8 see also Schaumburg

v. State Farm Mut. Auto. Ins., 421 Fed.Appx. 434, 439 (5th Cir.

2011)(unpublished)(“[a] breach of the duty of good faith and fair

dealing requires a breach of contract.”). Pertinent here, as

another Section of Court recently observed, “where an employment

contract allows for at-will termination, and termination for no

(or even impermissible) cause does not constitute breach, there is

no claim for breach of the implied covenant of good faith.” See

Tedesco v. Pearson Education, Inc., No. 21-199 2021 WL 2291148, at

*12 (E.D. La. June 4, 2021)(Africk, J.).

8 There, the Fifth Circuit noted that, in Lamar Contractors, Inc.

v. Kacco, Inc., 2015-1430 (La. 5/3/16), 189 So. 3d 394, 397, the

Louisiana Supreme Court cleared up case literature confusion in

holding that a plaintiff may not bring a cause of action for breach

of good faith where the defendant was not actually in breach of

the terms of the contract. See Whitney Bank, 949 F.3d at 211; cf.

Apache Deepwater, L.L.C. v. W&T Offshore, Incorporated, 930 F.3d

647, 655 (5th Cir. 2019)(considering Lamar and Civil Code article

2003, which correlates to article 1983, and observing that “[t]he

question of the obligee’s bad faith does not become relevant until

there is a determination that the oblige failed to perform a

contractual obligation that in turn caused the obligor’s failure

to perform.”).

To succeed on a breach of contract theory, Mr. Riley must

show that there has been a breach of the terms of his employment

agreement; only the breach of an express provision of a contract

can form the basis of a breach of contract claim. Because Mr.

Riley has not satisfied his burden of establishing, as a matter of

law, that the defendants violated the employment agreement in

reneging on the at-will employment arrangement or in “terminating”

him before he began working as an at-will employee, summary

judgment in the defendants’ favor dismissing the breach of contract

theory of recovery is warranted.9

C.

Detrimental Reliance

Though the at-will doctrine technically precludes any breach

of contract claim (due to the absence of technical breach of an

express obligation in the contract), Mr. Riley advances a cause of

action that appears to fill the gap between the parties’

contractual agreement and the Mayor’s failure to honor her promise

or obligation to bring him on as Director: detrimental reliance.

Mr. Riley alleges that, in reliance on his agreement with

Mayor Cantrell that he would serve as the City’s Director of

Homeland Security in her administration, he resigned from his

employment in Atlanta, Georgia with FEMA. He gave up a salary

9 What if any impact the duty of good faith and fair dealing

doctrine has on Mr. Riley’s unjust enrichment theory of recovery

(see Bains, infra) apparently must await pretrial briefing.

that paid him $170,000 annually, with bonus pay and benefits; he

submits that he did so (and Mayor Cantrell knew he did so) in

reliance on her promise that he would serve as Director, making

$180,000 annually. Invoking the same employment at-will doctrine

that precludes Mr. Riley’s breach of contract theory of recovery,

the defendants submit that it is unreasonable as a matter of law

to rely upon an offer of at-will employment. On the papers

submitted, the Court is not persuaded that Mr. Riley’s reliance

was unreasonable as a matter of law.

Article 1967 of the Louisiana Civil Code codifies the

detrimental reliance cause of action:

Cause is the reason why a party obligates himself.

A party may be obligated by a promise when he knew or

should have known that the promise would induce the other

party to rely on it to his detriment and the other party

was reasonable in so relying. Recovery may be limited to

the expenses incurred or the damages suffered as a result

of the promisee’s reliance on the promise. Reliance on

a gratuitous promise made without required formalities

is not reasonable.

Sounding in estoppel, such claims are disfavored and examined

strictly. See In re Ark-La-Tex Timber Co., Inc., 482 F.3d 319,

334 (5th Cir. 2007)(citations omitted).

“[D]esigned to prevent injustice by barring a party from

taking a position contrary to his prior acts, admissions,

representations, or silence[,]” the detrimental reliance doctrine

“focuses on the reasonableness of a party’s professed reliance

upon promises made outside the scope of a fully-integrated written

agreement between the parties.” See Cenac v. Orkin, L.L.C., 941

F.3d 182, 197-198 (5th Cir. 2019)(quoting Drs. Bethea, Moustoukas

& Weaver LLC v. St. Paul Guardian Ins. Co. (Bethea), 376 F.3d 399,

403 (5th Cir. 2004)(internal quotation marks and citations

omitted) and Water Craft Mgmt., L.L.C. v. Mercury Marine, 426

Fed.Appx. 232, 237 (5th Cir. 2011)(citation omitted)). In fact,

this doctrine is typically invoked when there is no written

contract, or an unenforceable contract exists between the parties.

See Bethea, 376 F.3d at 403 (citation omitted).

Detrimental reliance doctrine is based on “the idea that a

person should not harm another person by making promises that [s]he

will not keep,” Suire v. Lafayette City-Parish Consol. Gov’t, 04-

1459 (La. 4/12/05), 907 So. 2d 37, 58-59. To establish a

detrimental reliance cause of action, the plaintiff must prove (1)

a representation by word or conduct; (2) justifiable or reasonable

reliance on the representation; and (3) a change in position to

one’s detriment resulting from the reliance. See Cenac, 941 F.3d

at 198 (citation omitted).

Ordinarily, the reasonableness of a plaintiff’s reliance on

a promise is a fact-bound determination best reserved for the trier

of fact; however, in certain circumstances, a plaintiff’s reliance

on a promise may be unreasonable as a matter of Louisiana law.

See Bethea, 376 F.3d at 403-05. For example, “a party’s reliance

on promises made outside of an unambiguous, fully-integrated

agreement [that provides limited ways of altering the parties’

relationship] is unreasonable as a matter of law.” See Cenac, 941

F.3d at 198 (citing Bethea, 376 F.3d at 403-05). Similarly, the

case literature finds reliance to be unreasonable as a matter of

law “when a plaintiff relies on oral representations despite the

law’s insistence on certain formalities” or “when a plaintiff

relies on a representation that is clearly not intended to bind

the defendant or induce the plaintiff into reliance.” See Bethea,

376 F.3d at 405. When a contract is presented, the Court “looks

to both the presence of an integration clause and the plain

language of the contract to determine whether, as a matter of law,

reliance on inconsistent representations is unreasonable.” Cenac,

941 F.3d at 198-99 (holding that the plaintiffs could not seek

damages under detrimental reliance doctrine because one agreement

clearly states that it was inapplicable to Formosan termites,

another agreement disclaims any guarantee for damage related to

services and releases Orkin for termite damage, and both agreements

contain integration clauses permitting only written changes).

Mindful that the doctrine of detrimental reliance is designed

to prevent injustice and is based on “the idea that a person should

not harm another person by making promises that [s]he will not

keep,” Suire v. Lafayette City-Parish Consol. Gov’t, 04-1459 (La.

4/12/05), 907 So. 2d 37, 58-59, the Court turns to consider the

issue presented by the defendants’ motion. That the plaintiff has

no valid or enforceable contract does not preclude a detrimental

reliance theory of recovery. See, e.g., Audler v. CBC Innovis

Inc., 519 F.3d 239, 254 (5th Cir. 2008)(citation omitted)(“to

prevail on a detrimental reliance claim, Louisiana law does not

require proof of a formal, valid, and enforceable contract.”).

“This is so,” the state high court has observed, “because

detrimental reliance is not based upon the intent to be bound[;

r]ather, the basis of detrimental reliance is ‘the idea that a

person should not harm another person by making promises that [s]he

will not keep.” See Suire, 907 So. 2d at 59. Instead of

considering whether the parties intended to perform, the Court

properly directs its focus on “whether a representation was made

in such a manner that the promisor should have expected the

promisee to rely upon it, and whether the promisee so relies to

his detriment.” Id.

On the precise issue presented -- whether a prospective at-

will employee’s reliance on an offer of at-will employment is

unreasonable as a matter of law -- the state high court has not

ruled, and Louisiana intermediate courts (which are not strictly

binding here) appear to differ. The defendants invoke May v.

Harris Mgmt. Corp., 2004-2657 (La. App. 1 Cir. 12/22/05), 928 So.

2d 140, whereas the plaintiff invokes Bains v. Young Men’s

Christian Ass’n of Greater New Orleans, 06-1423 (La. App. 4 Cir.

10/3/07), 969 So.2d 646, writ denied, 07-2146 (La. 1/7/08), 973

So. 2d 727, which criticized May. On the briefing presented, the

Court declines to endorse May as binding dispositive authority.

Although Bains does not definitively resolve the issue of whether

a prospective at-will employee may recover on a detrimental

reliance theory, it is at least as instructive.

The defendants invoke May v. Harris Mgmt. Corp., 2004-2657

(La. App. 1 Cir. 12/22/05), 928 So. 2d 140, which was decided in

2005 by the Louisiana First Circuit Court of Appeal. There, an

employee sued a nursing home for detrimental reliance after she

quit her then-current job when the nursing home defendant offered

her an at-will position with it. Five days before her agreed-upon

start date with defendant, the nursing home employer withdrew its

offer, and the employee was unable to return to her prior

employment position. Id. at 143-44. The Louisiana First Circuit

Court of Appeal affirmed the trial court’s grant of summary

judgment in favor of the employer, dismissing the employee’s

detrimental reliance claim. Noting that the issue of

reasonableness of May’s reliance on HMC’s promise was “not as

clear,” the May court leaned heavily on “the strong presence” of

Louisiana’s at-will employment doctrine, noted that -- in the

sparse case literature where plaintiffs assert detrimental

reliance when terminated after working a short time in an at-will

employment context -- Louisiana appellate courts have held it to

be unreasonable to have relied on the at-will employment,

considering that a contract for permanent employment is legally

unenforceable. Id. at 146-47. Next, the May court observed a

split of authority outside Louisiana when those authorities

considered whether a plaintiff may pursue a detrimental reliance

theory of recovery when an at-will employment offer is withdrawn

before that employee actually begins work. Id. at 147-48. Though

noting the “harshness” of its ruling, ultimately, the May court

concluded that “the better view” is that “it is patently

unreasonable for an employee to rely on an offer of at-will

employment . . . just as it is patently unreasonable to rely on

the permanency of at-will employment once it begins.” Id. at 148-

49. Finally, the court also determined that May could not prove

the third (damages) element of the detrimental reliance claim

because she had no lost wages before her start date (she was on

accrued vacation from her previous employer), she did not have any

relocation damages, and she was able to find replacement employment

(for higher pay) one month after the defendant withdrew its offer

of employment. Id. at 149.

Notably, May itself was a divided opinion.10 One judge

“concurred” insofar as May failed to prove damages, but clearly

10 Considering that they fail to acknowledge, let alone grapple

with the split opinion, perhaps the defendants do not find this

fact notable. It is at best curious and at most concerning that

the defendants likewise fail to acknowledge and brief the split of

rejected the majority’s application of the at-will doctrine to

preclude recovery altogether, observing that:

[T]he “at-will” doctrine does not apply to a party who

is not yet an employee. A prospective employee should

be able to collect damages for costs of moving and other

provable damages a s a result of a breach of promise on

which a normally reasonable person would rely.

When we say that it is unreasonable as a matter of law

for an employee to rely on a promise of employment, we

say that it is reasonable for employees to expect

employers to breach their promises and act in reckless

disregard of the prospective employees’ welfare. I

believe the contrary: that employers generally act

honorably and in good faith. I therefore believe that it

is highly reasonable to rely on an employer’s promise of

employment. And pre-employment damages are not

precluded by the “at-will” doctrine.

Id. at 150-51 (Downing, J., concurring in the result). Another

judge dissented, wholly rejecting the May majority’s conclusion,

and noting that at least a fact issue existed as to whether May

suffered detriment under the doctrine of detrimental reliance:

In my view, such a conclusion [that the at-will

employment doctrine applies to preclude recovery to a

prospective employee] is an unwarranted extension of the

at-will employment principle to a classic factual

scenario of detrimental reliance governed by La. C.C.

art. 1967.

...

authority on this issue which they suggest is settled law in their

moving papers. But the law is not so settled, or cynical. For

the first time in their reply paper, the defendants acknowledge

(but distinguish) Bains; they appear to double down on their

position that May is settled Louisiana law. Absent briefing

directed to an Erie guess that persuasively would establish May as

the likely conclusion to be reached by the Louisiana Supreme Court,

the defendants’ papers fail to satisfy their burden on summary

judgment. The Court expects more comprehensive briefing in advance

of trial.

The undisputed evidence ... show[ed] May was never

afforded the promised opportunity of beginning

employment with HMC, and reasonably relied upon a firm

promise of employment before leaving the security of

ongoing employment and surrendering personal advantages.

At the very least, genuine issue of material fact existed

as to whether such changes constituted detriment under

the doctrine of detrimental reliance.

...

Would the result be different and anomalous if HMC had

terminated Ms. May’s employment the day after she

started, with no consequent liability? It certainly

might appear so, but the line must be drawn somewhere....

Our law is not perfect, but courts should nevertheless

strive to achieve justice within its imperfect

parameters.

Id. at 149-151 (Gaidry, J., dissenting).

For his part, Mr. Riley invokes slightly more recent

persuasive authority, an opinion by the Louisiana Fourth Circuit

Court of Appeal, Bains v. Young Men’s Christian Ass’n of Greater

New Orleans, 06-1423 (La. App. 4 Cir. 10/3/07), 969 So.2d 646,

writ denied, 07-2146 (La. 1/7/08), 973 So. 2d 727. There, Bains

discussed a new employment opportunity with the YMCA and was

offered the position of director of development, which included a

starting salary that was $25,000 more per year than her current

salary. Id. at 467-48. Three times, the CEO confirmed that the

offer was legitimate, and the CEO emailed Bains, stating “I would

like you to start on June 6.” Id. As a result, Bains resigned

from her then-current employment. Id. at 648. But when Bains was

supposed to start working at the YMCA, she was told that the

position was not available and may not be available until the fall.

Id. Bains remained unemployed for seven months, sued, and sought

damages due to her reliance on YMCA’s promise of employment. The

trial court granted the defendant’s exception of no cause of

action. Id.

In reversing, the Louisiana Fourth Circuit Court of Appeal

employed a “traditional civilian analysis” and criticized its

sister appellate court for failing to do so in May v. Harris Mgmt.

Corp., 2004-2657 (La. App. 1 Cir. 12/22/05), 928 So. 2d 140, the

case invoked by the Mayor and City in this case. See Bains, 969

So. 2d at 650 (Detrimental reliance doctrine is based on the idea

that “in a civil society, people should keep their word.”). Bains

rejected May’s finding that Louisiana’s at-will doctrine

essentially shields the employer from a detrimental reliance cause

of action in every factual scenario. Id. at 652. Ultimately, the

Bains court’s holding was limited to a rejection of May insofar as

Bains determined that the employment at-will doctrine did not

preclude the plaintiff from stating a cause of action. Id. at

652.11

Bains presented a procedurally distinct scenario, which the

defendants submit precludes a finding that it directly conflicts

with May. Regardless of whether a direct conflict is presented by

11 One judge concurred and two dissented; the dissenting opinion

simply stated that May already determined that “it is inherently

unreasonable to rely on an offer of at-will employment.” Id. at

652 (Armstrong, C.J., joined by Bagneris, J., dissenting).

the two state appellate cases12 -- absent briefing directed to any

Erie guess the Court should undertake -- the Court embraces as

reasonable the Bains court’s decidedly civilian approach and

accommodation of the at-will and detrimental reliance code

doctrines in the pre-employment context. The parties will have

another opportunity to brief the legal issue before trial.

Rejecting the defendants’ wholesale reliance on May and that

intermediate appellate court’s categorical bar against detrimental

reliance in the prospective at-will employment offer context, it

follows that the defendants’ motion for summary judgment must be

denied. Viewing the record facts in the light most favorable to

Mr. Riley, Mayor-Elect Cantrell promised and assured Mr. Riley

that he would serve in her administration as Directory of Homeland

Security and Public Safety. Mr. Riley was never afforded the

opportunity promised by Mayor Cantrell: to serve, however briefly

at-will, as the City’s Director of Homeland Security. “[A] person

should not harm another person by making promises that [s]he will

12 But see Allbritton v. Lincoln Health Sys., Inc., 45,537 (La.

App. 2 Cir. 10-20-10), 51 So. 3d 91, 97 (noting the conflict

presented between May and Bains on the issue of whether the at-

will doctrine applies to a person who has been offered employment

but not yet hired); Ditcharo v. United Postal Service, Inc., 376

Fed.Appx. 432, 439-40 (5th Cir. 2010) (unpublished) (affirming

district court’s finding that parcel delivery service employees

failed to state a determinantal reliance claim based on a promise

of permanent employment because such reliance would be

unreasonable as a matter of law in the at-will context, but also

observing that the employees “do not allege that [the employer]

failed to hire them[.]”).

not keep.” See Suire, 907 So. 2d at 59. A detrimental reliance

theory focuses on “whether a representation was made in such a

manner that the promisor should have expected the promisee to rely

upon it, and whether the promisee so relies to his detriment.”

Id. Whether Mr. Riley reasonably relied on Mayor-Elect Cantrell’s

promise to employ him in the at-will, unclassified position as

Director (for any length of time) is a classic fact issue which

the parties genuinely dispute. The Mayor submits that no

prospective employee could rely on a promise of at-will employment

and that Mr. Riley in particular could not so rely, given his

particular experience and knowledge having served for decades as

an at-will, unclassified employee of the City. Mr. Riley counters

that his reliance on Cantrell’s promise that he would be employed

as the City’s Director of Homeland Security -- a promise which

itself was neither so vague nor gratuitous that no one could

reasonably rely on it -- was in fact reasonable, considering the

parties’ reciprocal promises, his particular knowledge that Mayor

Cantrell selected him based on his unique and extensive experience

in agreeing to appoint him, that Mayor Cantrell knew he would or

had resigned from his job at FEMA so that he could serve in the

promised capacity by the Mayor-Elect of New Orleans, as Director,

and considering his particular experience of having served in at-

will, unclassified capacities for decades without ever being

fired. On this briefing, summary judgment dismissing Mr. Riley’s

detrimental reliance theory of recovery must be denied.

D.

Unjust Enrichment

Invoking Louisiana Civil Code article 2298, which provides “a

person who has been enriched without cause at the expense of

another person is bound to compensate that person[,]” the plaintiff

alleges in his complaint that he provided valuable professional

services to Mayor Cantrell and the City of New Orleans for which

he was not compensated. The defendants seek summary relief

dismissing the unjust enrichment claim on the grounds that the

plaintiff cannot prove an enrichment, an impoverishment, or the

lack of an alternative remedy.

Here, the plaintiff fails to mention his unjust enrichment

theory in his opposition papers. Plaintiff’s counsel confirmed at

oral argument that he has abandoned the claim. Perhaps this is so

because he cannot prove the fifth element of such a claim: absence

of another remedy at law.

The Louisiana Supreme Court articulates five elements for

unjust enrichment claims:

(1) there must be an enrichment;

(2) there must be an impoverishment;

(3) there must be a connection between the enrichment

and resulting impoverishment;

(4) there must be an absence of “justification” or

“cause” for the enrichment and the impoverishment; and

(5) there must be no other remedy at law available to

the plaintiff.

See Baker v. Maclay Properties Co., 648 So. 2d 888, 897 (La. 1995).

Insofar as the unjust enrichment remedy “is subsidiary and shall

not be available if the law provides another remedy for the

impoverishment or declares a contrary rule[,]” see La. Civ. Code

art. 2298, it is unavailable here given that Mr. Riley pursues

other remedies. Here, the Court has determined that Mr. Riley may

pursue a detrimental reliance theory of recovery; he thus has

another remedy at law.

Even if the Court had determined that Mr. Riley had no cause

of action for either detrimental reliance or breach of contract,

Mr. Riley could not prove the fifth element of his unjust

enrichment cause of action because “[t]he mere fact that a

plaintiff does not successfully pursue another available remedy

does not give the plaintiff the right to recover under the theory

of unjust enrichment.” See Bureau Veritas Commodities and Trade,

Inc., v. Nanoo, No. 20-3374, 2021 WL 2142466, at *7-8 (E.D. La.

May 26, 2021)(Vance, J.)(citing Walters v. MedSouth Rec. Mgmt.,

LLC, 38 So. 3d 243, 244 (La. 2010)). The defendants are entitled

to summary judgment dismissing the unjust enrichment claim.

III.

Finally, the defendants submit that they are entitled to

judgment as a matter of law that (i) the plaintiff cannot as a

matter of law recover damages from the City under the doctrine of

vicarious liability because Louisiana courts have interpreted

article 2320 of the Civil Code to mean that an employer is liable

for the torts of an employee committed while the employee is acting

within the course and scope of her employment, but that the

doctrine is inapplicable to contractual or obligation-based causes

of action not sounding in tort; and (ii) the plaintiff cannot

recover attorney’s fees because he has identified no statute or

contract authorizing such an award. The plaintiff does not oppose

the defendants’ submission on these points of law, and plaintiff's

counsel confirmed during oral argument that these claims should be

dismissed.

kkk

Accordingly, for the foregoing reasons, IT IS ORDERED: that

the defendants’ motion for summary judgment is GRANTED in part (as

to the plaintiff’s breach of contract claim, unjust enrichment

claim, the vicarious liability theory of recovery against the City,

and the plaintiff’s claim seeking attorney’s fees) and DENIED in

part (as to the plaintiff’s detrimental reliance claim, which

remains for trial).

New Orleans, Louisiana, June 30, 2021

My hie du

Ow . C. ELDMAN

UNITED STATHS DISTRICT JUDGE

31