The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
SHREVEPORT DIVISION
JONATHAN GRAMM CIVIL ACTION NO. 24-1187
VERSUS JUDGE S. MAURICE HICKS, JR.
FIRE DISTRICT 9 DESOTO MAGISTRATE JUDGE HORNSBY
PARISH, ET AL.
MEMORANDUM RULING
Before the Court is a Motion to Dismiss for Failure to State a Claim filed by
Defendants Fire District 9 DeSoto Parish (“DFD 9”) and Fire Chief Kristopher King (“King”)
(collectively, “Defendants”). See Record Document 11. Plaintiff Jonathan Gramm
(“Gramm”) opposed. See Record Document 15. Defendants replied. See Record
Document 16. For the reasons set forth below, Defendants’ Motion (Record Document
11) is GRANTED IN PART AND DENIED IN PART.
BACKGROUND
Gramm filed his Complaint against DFD 9 and King, individually and in his capacity
as the Fire Chief for DFD 9, seeking relief for the alleged hostility and retaliation he was
subjected to and the deprivation of his rights under the United States Constitution and
Louisiana Revised Statutes § 23:822. See Record Document 1 at 1. DFD 9 is one of six
Fire Protection Districts (the “District”) in DeSoto Parish, Louisiana. See id. at ¶ 8. The
District is administered by a municipal Board of Commissioners (the “Board”) and the Fire
Chief. See id. at ¶ 9. The Board develops and approves the annual budget and
establishes the tax rate for the District. See id. at ¶ 10. The Board is also responsible for
hiring the Fire Chief. See id.
The Fire Chief is responsible for managing the day-to-day operations for the
District, which includes deciding to hire and fire personnel, suspensions, creating and
enforcing workplace rules for employees, and anything else which might impact the terms
and conditions of a firefighter’s employment, as well as fire protection and public safety
operations. See id. at ¶ 11. At all relevant times, the District assigned King to have final
policymaking authority and enforcement of nearly all rules and regulations effecting terms
and conditions of employment, as well as disciplinary matters and the District’s fire
protection and public safety operations. See id. at ¶ 14.
Gramm began working for DFD 9 in September 2014 as a full-time firefighter with
the rank of Captain. See id. at ¶ 15. In July 2017, Gramm helped organize IAFF Local
5138 (“Local 5138” or the “union”) and was subsequently elected Secretary-Treasurer of
Local 5138 that month. See id. at ¶ 17. During his time as Secretary-Treasurer, from July
2017 though November 2023, he advocated on various matters of public concern which
were affecting the District’s firefighters. See id.
On September 18, 2023, Gramm, along with other firefighters employed by the
District, learned that the upcoming Board meeting’s agenda included an item to approve
public funds to be spent on a new vehicle for the Fire Chief. See id. at ¶ 18. Local 5138
members met to formulate a response to voice the firefighters’ concern for public funds
being spent on a new vehicle rather than being spent to improve the poor working
conditions and equipment at DFD 9. See id. at ¶ 19. The firefighters decided that Gramm,
as their union representative, would contact members of the Board to petition the use of
the District’s resources appropriately towards the improvements for equipment and fire
stations. See id.
On September 18, 2023, Gramm, while off duty, telephoned Commissioners Ross
Tilbury and Bobby Ettredge (collectively, “the Commissioners”) to petition them to redress
the firefighters’ concerns about the District and the expenditure of public funds. See id. at
¶ 20. Upon arriving at work the next day, King called Gramm into his office and handed
him a notice of formal investigation for an “incident involving him on or around September
18, 2023.” See id. at ¶ 21. Gramm asserts this “incident” involved a protected
constitutional activity he engaged in as a union officer and private citizen. See id. After
this meeting, he was sent home and placed on administrative leave. See id. While on
administrative leave, Gramm was subjected to an investigation allegedly spearheaded by
King that lacked due process. See id. at ¶ 22.
On November 27, 2023, Defendants terminated Gramm’s employment. See id. at
¶ 23. He was provided with an official Notice of Disciplinary Action (the “Notice”). See id.;
see also Exhibit 1. According to the Notice, he was discharged under particular official
policies of the District. See Record Document 1 at ¶ 24; see also Exhibit 1. In the Notice,
Gramm claims that Defendants explicitly acknowledge that he was terminated for
petitioning his government officials to redress grievances in his capacity as a union officer
while off-duty and for speaking to them as a private citizen about matters of public
concern. See Record Document 1 at ¶ 25.
As a result of Gramm’s termination, he contends he has suffered lost wages and
benefits, mental and emotional harm, damage to his personal and professional
reputations, and other injuries. See id. at ¶ 26. Gramm asserts the following four counts
against Defendants: (1) 42 U.S.C. § 1983 Violation of Right to Free Speech Pursuant to
the First and Fourteenth Amendments; (2) 42 U.S.C. § 1983 Violation of Right to Freedom
of Association Pursuant to the First and Fourteenth Amendments; (3) 42 U.S.C. § 1983
Retaliation in Violation of Right to Petition Pursuant to the First and Fourteenth
Amendments; and (4) La. R.S. § 23:822 Retaliation in Violation of State Public Policy to
Permit Persons to Form, Join, and Assist Labor Organizations. See id. at ¶¶ 29–70.
LAW AND ANALYSIS
I. Dismissal Standards.
“Under Federal Rule of Civil Procedure 12(b)(1), a claim is ‘“properly dismissed for
lack of subject-matter jurisdiction when the court lacks the statutory or constitutional
power to adjudicate” the claim.’” Turner v. Scott, No. 18-00998, 2019 WL 3771751, at *1
(M.D. La. Aug. 9, 2019) (quoting In re FEMA Trailer Formaldehyde Prods. Liab. Litig., 668
F. 3d 281, 286 (5th Cir. 2012) (quoting Home Builders Ass’n v. City of Madison, 143 F. 3d
1006, 1010 (5th Cir. 1998))). Furthermore, “[a] motion to dismiss under Rule 12(b)(1) is
analyzed under the same standard as a motion to dismiss under Rule 12(b)(6).” Id. (citing
Benton v. U.S., 960 F. 2d 19, 21 (5th Cir. 1992)). The party asserting jurisdiction has the
burden of proof under Rule 12(b)(1). Wells v. Dep’t of Children and Family Servs., No. 23-
354, 2024 WL 3319925, at *2 (M.D. La. Jan. 24, 2024). See Celestine v. TransWood. Inc.,
467 Fed. Appx. 317, 318 (5th Cir. 2012).
Federal Rule of Civil Procedure 12(b)(6) allows parties to seek dismissal of a
party’s pleading for failure to state a claim upon which relief may be granted. FED. R. CIV.
P. 12(b)(6). In deciding a Rule 12(b)(6) motion to dismiss, a court generally “may not go
outside the pleadings.” Colle v. Brazos Cnty., Tex., 981 F. 2d 237, 243 (5th Cir. 1993).
Additionally, courts must accept all allegations in a complaint as true. See Iqbal, 556 U.S.
at 678, 129 S. Ct. at 1949. However, courts do not have to accept legal conclusions as
facts. See id. Courts considering a motion to dismiss under Rule 12(b)(6) are only
obligated to allow those complaints that are facially plausible under the Iqbal and Twombly
standards to survive such a motion. See id. at 678–79, 1949–50. If the complaint does
not meet this standard, it can be dismissed for failure to state a claim upon which relief
can be granted. See id.
II. Summary of the Arguments.
Defendants argue Gramm’s Complaint should be dismissed because he cannot
state a cognizable claim. See Record Document 11-1 at 6. Defendants assert that his free
speech retaliation claims should be dismissed because it is well established that the First
Amendment does not protect speech made in furtherance of a public employee’s official
duties, regardless of whether that speech addresses a matter of public concern. See id.
They contend his Complaint is replete with allegations that affirmatively establish his
alleged speech was made in the ordinary scope of acting as the union representative of
Local 518 and therefore cannot serve as the foundation of a free speech claim. See id.
Defendants aver that Gramm’s Fourteenth Amendment claims fail because he was an at-
will employee of DFD 9, and no contract, statute, or other state law entitlement exists to
alter his at-will relationship with DFD 9. See id. Additionally, they advance that he cannot
articulate a colorable due process claim because, as an at-will employee, he has not
alleged any vested liberty or property interest under state law. See id.
Gramm opposes, asserting that his Complaint alleges facts showing that he
engaged in protected speech. See Record Document 15 at 10. He argues Defendants
improperly conflate his official job duties as a firefighter, which he performs pursuant to
his employment with the District, with his responsibilities as a union officer, which he
performs on his personal time. See id. at 11. Gramm submits that he acted as a private
citizen when he spoke to the Commissioners as a union officer about the Board’s use of
public money and DFD 9’s ability to serve the public. See id. at 12.
Furthermore, Gramm contends that there is no dispute that he spoke about matters
of public concern when he called the Commissioners. See id. Thus, he submits this is
quintessential First Amendment activity, and the Court should reject Defendants’
arguments. See id. at 13. Even if the Court credits Defendants’ position and finds that
aspects of Gramm’s speech were private rather than public speech, Gramm avers that
the Court should not dismiss his free speech claim, but instead, find that his conversations
with the Commissioners constitutes mixed speech that is protected by the First
Amendment. See id. at 15.
Gramm also advances that his Complaint alleges that he engaged in union
activities that are protected by the Free Association Clause and Louisiana state law. See
id. at 16. He argues it is unlawful for public employers, including the District, to retaliate
against employees that engage in concerted union activities or advocate and petition the
government on their behalf of a union under both the United States Constitution and
Louisiana law. See id. at 17. He asserts that his Complaint sufficiently alleges that he was
fired because he called his local government officials at the behest of union members to
raise their collective concerns about the budget and the District’s ability to perform its
public safety functions. See id. at 19.
Defendants reply, averring that Gramm’s Complaint demonstrates that he was not
acting in the public interest but was solely motivated by an outcome that would personally
benefit him. See Record Document 16 at 3. Defendants state that Gramm did not contact
the Commissioners at their offices; did not voice his complaints at a public meeting; did
not voice his complaints to his supervisor; did not voice his complaints to the public; and
did not voice his complaints to anyone outside of the fire department. See id. They
contend that Gramm’s argument stating he was performing a public service, “completely
out of the eyes of the public, and while requesting alternative uses of the [DFD] 9’s funds
that directly benefit him personally is laughable.” See id. Defendants submit that he
ignored DFD 9’s process for making complaints, obtained the Commissioners personal
cell phone numbers, and acted in his own best interests. See id.
III. Analysis.1
Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be
liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress, except that in any action
brought against a judicial officer for an act or omission taken
in such officer’s judicial capacity, injunctive relief shall not be
granted unless a declaratory decree was violated or
declaratory relief was unavailable.
1 The Court notes that Defendants’ Motion provides the standard of review under Rule 12(b)(1). See Record
Document 11-1 at 9. It is unclear whether Defendants are attempting to also move for a dismissal under
Rule 12(b)(1), but they provide no sufficient argument for why this Court lacks subject matter jurisdiction.
The Court should consider a Rule 12(b)(1) motion before addressing a Rule 12(b)(6) motion. See Wilkerson
v. Univ. of North Tex., 223 F. Supp. 3d 592, 601 (E.D. Tex. 2016). The Court finds that there is no sufficient
evidence to strip this Court of subject matter jurisdiction. Subject matter jurisdiction exists, and any motion
to dismiss under Rule 12(b)(1) is DENIED.
Ramirez v. Rendon, No. B-14-179, 2015 WL 10437815, at *5 (S.D. Tex. Dec. 7, 2015)
(quoting 42 U.S.C. § 1983)). Section 1983 is “‘a method for vindicating federal rights
elsewhere conferred by those parts of the United States Constitution and federal statutes
that it describes.’” Id. “To prevail upon a § 1983 claim[,] a plaintiff must establish two
elements: (1) a constitutional violation; and (2) that the defendants were acting under
color of state law when they committed the constitutional violation.” Id. The Court will now
discuss each of Gramm’s claims in turn.
(a) Counts I & III – § 1983 Violation of Rights to Free Speech and to Petition
Pursuant to the First and Fourteenth Amendments.
“Claims brought under the First Amendment’s free speech and petition clause are
analyzed in the same way.” Lubbe v. Milanovich, No. 18-1011, 2020 WL 5260545, at *5
(W.D. Tex. June 8, 2020) (citing Gibson v. Kilpatrick, 838 F. 3d 476, 481 (5th Cir. 2016)).
To succeed on his claims under Counts I and III, Gramm must demonstrate that “‘(1) he
suffered an adverse employment action; (2) he spoke as a citizen on a matter of public
concern; (3) his interest in the speech outweighs the government’s interest in the efficient
provision of public service; and (4) the speech precipitated the adverse employment
action.’” Dumas v. St. Tammany Parish Fire Dist. No. 3, No. 17-1025, at *5 (E.D. La. May
12, 2017). “Whether speech addresses a matter of public concern is a question of law to
be resolved by the court.” Id.
Defendants’ argument that Gramm’s speech violated DFD 9’s policy is irrelevant
“‘to whether the subject matter of the speech is on a matter of public concern.’” Moreau
v. St. Landry Parish Fire Dist. No. 3, 413 F. Supp. 3d 550, 561 (W.D. La. Sept. 10, 2019)
(quoting Salge v. Edna Indep. Sch. Dist., 411 F. 3d 178, 185 (5th Cir. 2005)). The question
of whether Gramm’s speech addresses a matter of public concern “‘must be determined
by the content, form, and context of a given statement….’” Id. At the pleading stage, the
question before the Court is whether Gramm sufficiently pled the elements required for
his claims under Counts I and III.
The first element, which requires an adverse employment action, has been
sufficiently pled by Gramm is his Complaint and is supported by the attached Notice. See
Record Document 1; see also Exhibit 1. With respect to the second and third elements,
the issue of whether Gramm’s speech was that of a citizen on a matter of public concern
is “most commonly addressed at summary judgment when the Court has the benefit of a
fully developed record.” Lubbe v. Milanovich, No. 18-1011, 2020 WL 5260545, at *6 (W.D.
Tex. June 8, 2020). Gramm claims that he called the Commissioners while he was off
duty in an effort “to petition them, as his government officials to redress his and [the other]
firefighters’ concerns about the District and the expenditure of public funds.” See Record
Document 1 at § 20. He asserts that his speech dealt with the safety of the firefighters
and the community of DeSoto Parish. See id. Gramm provides the Court with specific
factual allegations as to what was said during this phone call, and the Court must accept
these allegations as true at the pleading stage. See Lubbe, 2020 WL 5260545, at *6.
Furthermore, the Fifth Circuit has held that “speech on matters of public concern
need not be made before a public audience.” Moreau, 413 F. Supp. 3d at 561. Thus,
Defendants’ argument that Gramm’s speech was not made in front of a public audience
is irrelevant for determining whether his speech is protected. At the pleading stage, his
Complaint contains sufficient factual allegations that support the second and third
elements of his claims under Counts I and III.
As to the fourth and final element, Gramm’s phone call to the Commissioners
occurred on September 18, 2023, and he received the Notice on November 27, 2023.
See Exhibit 1. Thus, there is sufficient evidence to demonstrate that the speech at issue
predated the adverse employment action. In fact, the Notice from King specifically
addressed Gramm’s phone call with the Commissioners. See id. King wrote that Gramm
“acted in an unbecoming, discourteous, deliberate, and unprovoked manner when [he]
bypassed [his] immediate supervisor, defamed [King] and made false statements and
accusations of the misuse of departmental funds and a lack of appropriated
equipment….” See id. at 2. Thus, Gramm has plausibly alleged that his speech resulted
in his termination.
Accordingly, the Court finds that Gramm has sufficiently pled a plausible claim for
relief as to Counts I and III. He alleges that he engaged in an external communication
when he complained to the Commissioners over the phone regarding the distribution of
public funds. This communication can support a claim for free speech retaliation, as it
was made outside of Gramm’s duty as a firefighter captain and addressed an issue that
could qualify as a matter for public concern. Therefore, Defendants’ Motion with respect
to Counts I and III is DENIED. Gramm’s claims under § 1983 for a violation of his rights
to free speech and to petition pursuant to the First and Fourteenth Amendments remain.
(b) Count II – § 1983 Violation of Right to Freedom of Association Pursuant to the
First and Fourteenth Amendments.
“The freedom of association guaranteed by the First Amendment ‘encompasses
the right of public employees to join unions.’” Lindberg v. Bossier Parish, La., No. 07-
00641, 2008 WL 4491642, at *3 (W.D. La. Oct. 2, 2008). “This right ‘is violated by state
actors whose purpose is either to intimidate public employees from joining a union or from
taking an active party in its affairs or to retaliate against those who do.’” Id. “[A] First
Amendment association retaliation claim requires [Gramm] to show: (1) that he suffered
an adverse employment action; (2) that his interest in associating outweighed Defendants’
interest in efficiency; and (3) that his association with the union was a substantial or
motivating favor in the adverse employment action.” United Steel, Paper and Forestry,
Rubber, Mfg., Energy, Allied Industrial and Serv. Workers Int’l Union v. Anderson, 462 F.
Supp. 3d 676, 693 (W.D. Tex. 2020).
As stated above, Gramm has sufficiently pled that he has suffered an adverse
employment action, which is evidenced by the attached Notice. See Record Document 1;
see also Exhibit 1. However, he has failed to sufficiently allege elements two and three.
In his Complaint, he admits that DFD 9 knew of his involvement and membership in Local
5138. See Record Document 1 at ¶ 43. Gramm’s involvement with Local 5138 began as
early as July 2017, while he was employed by DFD 9. See id. at ¶¶ 15, 17. Additionally,
a review of the Notice supports a finding that Defendants terminated Gramm because of
his speech, not his association with Local 5138. The Court finds that Gramm has failed
to plausibly allege that his association with Local 5138 was a substantial or motivating
favor in his termination. He was a member long before his termination, and he has failed
to sufficiently demonstrate that Defendants retaliated against him because of his
association with Local 5138.
Gramm’s allegations under Count II are replete with conclusory language that is
either insufficient for pleading purposes or better supports his claims under Counts I and
III. For example, he asserts that Defendants “discriminated against, disciplined, and
discharged Gramm because of his associational activity as a union officer on September
18, 2023, when he advocated to [the Commissioners]” is conclusory and speculative. See
Record Document 1 at ¶ 45. Additionally, he advances that Defendants’ conduct
“unlawfully chills the free association with IAFF Local 5138, among other organizations,
and intimidates other District employees and members of the DeSoto Parish community
from similarly associating with or participating in IAFF Local 5138.” See id. at ¶ 46. He
continues and claims that Defendants’ conduct “was done in a knowing, willful, wanton,
reckless, and bad faith manner, which violates clearly established constitutional
provisions and rights which a reasonable person would have known.” See id. at ¶ 48. His
allegations are legal conclusions that call for speculation, which is insufficient at this stage
of the proceeding.
Therefore, Defendants’ Motion to Dismiss (Record Document 11) is GRANTED
with respect to Count II. Gramm’s claim under § 1983 for a violation of his right to freedom
of association pursuant to the First and Fourteenth Amendments is DISMISSED WITH
PREJUDICE.
(c) Count IV – La. R.S. § 23:822 Retaliation in Violation of State Public Policy to
Permit Persons to Form, Join, and Assist Labor Organizations.
Louisiana Revised Statutes § 23:822 provides the following public policy:
Negotiation of terms and conditions of labor should result from
voluntary agreement between employer and employee.
Governmental authority has permitted and encouraged
employers to organize in the corporate and other forms of
capital control. In dealing with such employers the individual
unorganized worker is helpless to exercise actual liberty of
contract and to protect his freedom of labor, and thereby to
obtain acceptable terms and conditions of employment.
Therefore, it is necessary that the individual workman have
full freedom of association, self-organization, and designation
of representatives of his own choosing, to negotiate the terms
and conditions of his employment, and that he shall be free
from the interference, restraint, or coercion of employers of
labor, or their agents, in the designation of such
representatives or in self-organization or in other concerted
activities for the purpose of collective bargaining or other
mutual aid or protection.
LA. REV. STAT. § 23:822. Under Count IV of his Complaint, Gramm alleges that Defendants
retaliated against him in violation of his rights “safeguarded under Louisiana state law.”
See Record Document 1 at ¶ 68. He claims that “[t]he grounds and reasons offered by
Defendants for the adverse actions against [him] are false and pretextual.” See id.
Additionally, he asserts that Defendants’ action “were done in a knowing, willful, and
reckless manner and in bad faith, and violate clearly established statutory rights of which
a reasonable person in the place of the Defendants would have known.” See id. at ¶ 69.
Gramm only seeks declaratory and injunctive relief under Count IV. See id. at ¶ 70.
The Court finds Gramm’s allegations to be conclusory and lacking any factual
support. La. R.S. § 23:822 “merely declares that it is against public policy to restrict labor
and union activity and allows a court to enjoin unlawful activity.” Lindberg v. Bossier
Parish, La., No. 07-00641, 2008 WL 4491642, at *7 (W.D. La. Oct. 2, 2008). Gramm has
failed to sufficiently and plausibly allege that Defendants retaliated against him for his
association and involvement with Local 5138. The disciplinary action at issue here mainly
involved Gramm’s speech, not his association with the union. Merely stating that
Defendants retaliated against him and violated his “clearly established statutory rights” is
insufficient at the pleading stage. Count IV of Gramm’s Complaint is replete with legal
conclusions and unsupported allegations. Therefore, Defendants’ Motion (Record
Document 11) is GRANTED as to Count IV. Gramm’s claim under La. R.S. § 23:822 for
retaliation in violation of state public policy is DISMISSED WITH PREJUDICE.
CONCLUSION
For the reasons stated above,
IT IS ORDERED that Defendants’ Motion to Dismiss (Record Document 11) is
GRANTED IN PART AND DENIED IN PART.
The Motion is GRANTED with respect to Counts II and IV. Gramm’s claim listed in
Count II under § 1983 for a violation of his right to freedom of association pursuant to the
First and Fourteenth Amendments is DISMISSED WITH PREJUDICE. His claim listed in
Count IV under La. R.S. § 23:822 for retaliation in violation of state public policy is
DISMISSED WITH PREJUDICE.
The Motion is DENIED with respect to Counts | and Ill. Gramm’s claim listed in
Count | under § 1983 for a violation of his right to free speech pursuant to the First and
Fourteenth Amendments remains. His claim listed in Count III under § 1983 for a violation
of his right to petition pursuant to the First and Fourteenth Amendments remains.
An Order consistent with this Ruling shall issue herewith.
THUS DONE AND SIGNED, in Shreveport, Louisiana, this 12th day of June, 2025.
Kihei (beef
UNITED STATES DISTRICT COURT JUDGE
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