The opinion
JOHN LADD * NO. 2022-CA-0212
VERSUS *
COURT OF APPEAL
LAW ENFORCEMENT *
DISTRICT FOR THE PARISH FOURTH CIRCUIT
OF ORLEANS, ORLEANS *
PARISH SHERIFF'S OFFICE, STATE OF LOUISIANA
SHERIFF MARLIN N. *******
GUSMAN, IN HIS OFFICIAL
CAPACITY AS SHERIFF OF
ORLEANS PARISH, AND
CARMEN DESADIER,
INDIVIDUALLY AND IN HER
CAPACITY AS AN OFFICER
OF THE ORLEANS PARISH
SHERIFF'S OFFICE
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2016-03569, DIVISION “A”
Honorable Ellen M Hazeur, Judge
******
Judge Daniel L. Dysart
******
(Court composed of Judge Roland L. Belsome, Judge Daniel L. Dysart, Judge
Paula A. Brown)
BROWN, J., CONCURS IN THE RESULT
Michael R. Allweiss
LOWE STEIN HOFFMAN ALLWEISS & HAUVER, L.L.P.
701 Poydras Street
Suite 3600
New Orleans, LA 70139-7735
COUNSEL FOR PLAINTIFF/APPELLANT
Stephen D. Marx
CHEHARDY SHERMAN WILLIAMS RECILE & HAYES, LLP
One Galleria Boulevard
Suite 1100
Metairie, LA 70001
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
OCTOBER 5, 2022
DLD This is an appeal from the trial court’s January 20, 2022 Judgment
RLB
dismissing Appellant’s, John Ladd’s, state Whistleblower claim (La. R.S. 23:967).
For the following reasons, we affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
John Ladd (“Ladd”) began his employment with the Orleans Parish Sheriff’s
Office (“OPSO”) on April 28, 2014. During his tenure at OPSO, Ladd was tasked
with supervisory responsibilities over four officers, including Officer Dana Busby
(“Busby”). On September 2, 2015, Officer Busby received an anonymous tip that
Wilbert Robinson (“Robinson”), an OPSO inmate, was being escorted to visit a
woman while Robinson was to be participating in a work-release program. Busby
relayed the information to Ladd who in turn reported it to his supervisors,
Lieutenant Joseph Catalonotto (“Catalonotto”) and Major Ed Hosli (“Hosli”).
With the information obtained by Busby, OPSO obtained search warrants to
track OPSO vehicles and determine whether any Officers were involved in the
alleged activities. Ladd was the primary investigator assigned to the case. While
the investigation remained ongoing, then-Chief Carmen DeSadier (“DeSadier”) re-
assigned the supervision of Ladd to Lieutenant John Morreale (“Morreale”).
1
Shortly thereafter, the vehicle tracking devices exposed OPSO Officer Raymond
Jacques (“Jacques”) as Robinson’s driver.
On October 1, 2015, DeSadier instructed Ladd to terminate the investigation
into the Robinson matter as Robinson would no longer be permitted to work
offsite. Ladd terminated his investigation accordingly. However, on October 15,
2015, Ladd reported to Morreale that he heard Robinson’s offsite visits persisted.
Ladd expressed his concerns directly to Morreale who in turn reported Ladd’s
concerns directly to DeSadier.
That afternoon DeSadier and Morreale met with Ladd, at which time Ladd
was informed he was immediately suspended for “employee misconduct” and that
an investigation of Ladd would be opened regarding the alleged alteration of a
report as well as the alleged leaking of information related to the Robinson
investigation.
An investigation into the alleged actions of Ladd was opened by OPSO on
October 26, 2015, eleven days after Ladd’s immediate suspension had been
implemented. Julian Augustus (“Augustus”) was assigned to conduct the
investigation with the assistance of Ernest Newman (“Newman”). Augustus and
Newman reviewed the drafts/reports that had been created by Busby concerning
the Robinson matter, and which had been allegedly altered by Ladd. Neither
Augustus nor Newman submitted a signed investigation report on the matter to
their rank, notified Ladd of their findings in writing, or referred Ladd to the
Disciplinary Board, all of which are standard OPSO procedures. After Ladd had
been suspended without pay for nearly one month, and as Ladd believed his
suspension would continue indefinitely, he resigned from OPSO on his own
2
volition on November 12, 2015. Prior to resigning he had not made any employee-
related complaint.
On April 6, 2016, Ladd filed the current suit against OPSO, alleging that
OPSO’s failure to schedule a disciplinary hearing in accordance with its standard
policies amounted to the intentional, constructive discharge of Ladd even though
Ladd was protected by Louisiana’s Whistleblower statute.1 See La. R.S. 23:967.
Trial on the merits was held on November 15, 2021. After presentation of all of
the evidence and argument of counsel, the obstruction of justice charge was
dismissed. The trial court further found that Officer Jacques’s participation in
Robinson’s escapes did not amount to an “employment act or practice” under La.
R.S. 23:967, and that Ladd failed to establish that he objected to the alleged
violations of state law. Accordingly, the trial court rendered a Judgment
dismissing each of Ladd’s claims, including his Whistleblower claim, on January
20, 2022. This appeal timely followed.
STANDARD OF REVIEW
The trial court’s Judgment dismissing Ladd’s Whistleblower claim is based
on findings of fact. As such, the manifest error/clearly wrong standard of review
applies. In order to reverse a trial court’s findings of fact,
“…the appellate court [must] apply a two-part test: (1) the appellate
court must find from the record that a reasonable factual basis does
not exist for the finding of the trial court, and (2) the appellate court
must further determine that the record establishes the finding is clearly
wrong (manifestly erroneous).”
1 Also named as defendants in Ladd’s Petition were the Law Enforcement District for the Parish
of Orleans, Sheriff Marlin N. Gusman in his official capacity as Sheriff of Orleans Parish, and
Carmen DeSadier individually and in her official capacity as an Officer of the Orleans Parish
Sheriff’s Office.
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Greenblatt v. Sewerage & Water Board of New Orleans, 19-0694, p. 3 (La. App. 4
Cir. 12/20/19), 287 So.3d 763, 766 (citing Wilson v. Veolia Transp. Servs., Inc.,
15-0998, p. 3 (La. App. 4 Cir. 4/13/16), 192 So.3d 245, 248 (citing Mart v. Hill,
505 So.2d 1120, 1127 (La.1987)). A proper application of this test requires
“[t]he reviewing court [to] review the record in its entirety to
determine whether the trial court's finding was clearly wrong or
manifestly erroneous. The issue to be resolved by a reviewing court is
not whether the trier of fact was right or wrong, but whether the
factfinder's conclusion was a reasonable one.”
Id. at pp. 3-4 So3d at 766. “Where two permissible views of the evidence exist,
the fact finder’s choice between them cannot be manifestly erroneous or clearly
wrong, even if the reviewing court would have decided the case differently.”
Greenblatt, 19-0694, p. 4, 287 So.3d at 766, 767 (quoting Everhardt v. Louisiana
Dep’t of Transp. & Dev., 07-0981, p. 18 (La. App. 4 Cir. 2/20/08) 978 So.2d 1036,
1049). “Accordingly, reasonable evaluations of credibility and reasonable
inferences of fact are not to be disturbed…even though [the court] may feel its own
evaluations and inferences are more reasonable….” Id. at p. 4, 287 So.3d at 767.
DISCUSSION
Louisiana’s Whistleblower statute is narrowly tailored and provides
protection from reprisal for employees who,
“…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.
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. Four (4) elements are essential, then, for an employee to prevail
on a Whistleblower claim. To establish protected Whistleblower status, Ladd must
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prove that (1) Officer Jacques ’s involvement in Robinson’s escapes was actually a
workplace act or practice of OPSO; (2) Ladd advised OPSO of the principal/escape
violation; (3) Ladd either disclosed or threatened to disclose the violation, provided
information to or testified before a public investigatory agency in relation to the
violation, or objected to or refused to participate in the unlawful actions; and (4)
OPSO retaliated against Ladd as a result. See Hale v. Touro Infirmary, 2004-0003,
p. 10 (La. App. 4 Cir. 11/3/04); 886 So.2d 1210, 1216.
The trial court held that Ladd failed to prove all of the elements required to
prevail on his Whistleblower claim. We agree. The facts adduced by the trial
court provide a reasonable basis for finding that Ladd failed to establish all of the
mandatory Whistleblower elements. Moreover, the trial court pointed out that
OPSO never committed an obstruction of justice as defined in La. R.S. 14:130.1, a
finding that Ladd ultimately concedes in his appellant brief. As such, Ladd’s
appeal is limited to the trial court’s findings as to the escape/principal allegations.
After a thorough review of the record in its entirety, we find that the trial court’s
Judgment dismissing Ladd’s Whistleblower claim was neither clearly wrong nor
manifestly erroneous.
Simple Escape/Principal to Simple Escape
Element No. 1 — Employer Workplace Act or Practice
Ladd avers that OPSO’s workplace acts or practices violated state law
because Jacques was a principal party to the crime of simple escape. Simple
escape is defined as:
(1) The intentional departure, under circumstances wherein human life
is not endangered, of a person imprisoned, committed, or detained
from a place where such a person is legally confined, from a
designate area of a place where such a person is legally confined,
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or from the lawful custody of any law enforcement officer or
officer of the Department of Safety and Corrections.
(2) The failure of a criminal serving a sentence and participating in a
work release program authorized by law to report or return from
his planned employment or other activity under the program at the
appointed time.
(3) The failure of a person who has been granted a furlough under the
provisions of R.S. 15:8333 or R.S. 15:908 to return to his place of
confinement at the appointed time.
La. R.S. 14:110. Principals to crimes are “[a]ll persons concerned in the
commission of a crime, whether present or absent, and whether they directly
commit the act constituting the offense, aid and abet in its commission, or directly
or indirectly counsel or procure another to commit the crime.” La. R.S. 14:24.
We do not feel that Robinson’s actions constitute an escape. Though
Robinson may have left the Jacques’s immediate custody, Robinson never failed to
report or return from his planned employment or other activity at the appointed
time. Robinson was participating in a quasi-work-release program when Jacques
allowed him to visit his girlfriend. The facts indicate that Officer Jacques
“dropped off” Robinson and waited in his vehicle outside of Robinson’s
girlfriend’s house until Robinson returned. There was no testimony that Robinson
ever left the supervision of Jacques. And though Robinson was presented many
opportunities to commit an escape during these visits, his willful and punctual
return to Jacque’s custody is further evidence that Robinson never actually
perpetrated an escape.
Furthermore, even if Robinson’s actions did constitute an escape, Ladd
failed to equate Jacques’s actions with the actions of OPSO. Louisiana’s
Whistleblower statute “covers only serious violations committed by the employer,
not illegal acts of a mere co-worker.” Goulas v. LaGreca, 945 F. Supp. 2d 693,
703 (E.D.L.A. 2013). Jacques was merely a low-level OPSO officer who acted by
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his own volition. Ladd presented no evidence proving that OPSO condoned
Jacques’s actions. Further, Ladd failed to show that any OPSO employee other
than Jacques participated in the acts. The illegal acts of a mere employee do not
rise to the level of “serious violations committed by the employer.” Id.
We find that Robinson’s and Jacques’s actions do not meet the statutory
requirements of simple escape. Considering that no crime was committed, Ladd
failed to meet the first element to prevail on his Whistleblower claim. However,
even if a crime had been committed, Ladd failed to show that Jacques’s actions
rose to the level of an employment act or practice, and Ladd again failed to
establish the first Whistleblower element.
Element No. 2 — Employee Must Advise Employer of the Crime
Ladd alleges that he apprised OPSO of Robinson’s alleged simple escapes
and Jacques’s participation therein. In fact, Ladd had received the information
from Busby and reported it up the chain of command. Louisiana Courts have held
that the requirement to advise an employer of a crime is reserved for the employee
who actually discovers said crime. See Mabry v. Andrus, 45-135 (La. App. 2 Cir.
4/14/10) 34 So.3d 1075, writ denied, 2010-1368 (La. 9/24/10) 45 So.3d 1079
(holding that plaintiff successfully advised his employer of a crime when “he
found” substantial accounting errors).
Here, Ladd did not personally discover the actions of Robinson/Jacques. He
was merely the supervising officer to whom the allegations were directly reported.
Thus, Ladd is afforded no protection under the Whistleblower statute, as he merely
reported information to his ranking officers in accordance with his duties. Ladd
failed to prove that he advised his employer of a crime.
Element No. 3 – Disclosure, Testimony, Objection or Refusal to Participate
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Ladd admits that he neither disclosed nor threatened to disclose information
about the Robinson matter, nor did he testify to a body investigating the matter.
Instead, Ladd avers that he objected to the fact that Robinson’s escapes persisted
after DeSadier instructed Ladd to terminate his investigation into the matter. Ladd
points to the conversation between himself and Morreale on the morning of
October 15, 2015, in which Ladd informs Morreale that Robinson is still being
allowed to visit his girlfriend outside of OPSO custody. However, the record
indicates that Ladd objected to what he perceived to be an obstruction of justice,
not to Robinson’s/Jacque’s alleged simple escape. Ladd’s Petition for Damages
states “[a]s DeSadier had both removed Ladd and terminated the investigation
claiming a flight risk and as Robinson was still allowed to leave the jail, the
removal of Ladd and the termination of the investigation appeared to Ladd to be an
obstruction of justice and Ladd reported his conclusion to Catalonotto and Hosli.”
Further, the Petition avers “[o]n October 15, 2015…Ladd advised Morreale that
there was a problem as Robinson had again been seen out of the jail, and again
raised concern over a potential obstruction of justice.”
The trial court found that Ladd failed to satisfy the objection element of his
Whistleblower claim because the alleged crime to which he objected, obstruction
of justice, never occurred. Ladd conceded this in his post-trial brief as well as in
his appellant brief. Ladd argues that he objected to Robinson’s/Jacque’s alleged
escapes when he reported to Morreale on October 15, 2015. However, Ladd’s
Petition for Damages clearly states that he objected to what he perceived to be an
obstruction of justice. Being that no obstruction of justice took place, we agree
with the trial court’s ruling that Ladd did not prove he engaged in any of the
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actions protected under La. R.S. 23:967(A). Thus, Ladd failed to prove the third
element of his Whistleblower claim.
Element No. 4 – Employer Reprisal
Ladd argues that by implementing a suspension without pay and failing to
schedule a Disciplinary Board hearing, OPSO took reprisal against him by
constructively firing him. “To establish prima facie case against employer for
retaliation, employee must prove by preponderance of evidence that: (1) he or she
engaged in protected activity; (2) adverse employment action occurred; and (3)
causal link existed between protected activity and adverse employment action.”
Tatum v. United Parcel Service, Inc., 10-1053, p. 17 (La. App. 5 Cir. 11/15/11) 79
So.3d 1094, 1104, writ denied, 2011-2783 (La. 2/17/12), 82 So. 3d 290. As
discussed above, Ladd’s actions were not protected under the Whistleblower
statute. Moreover, Ladd was not constructively fired; he resigned on his own
volition after nearly a month of suspension without pay. OPSO neither coerced
nor forced Ladd to resign. Rather, Ladd chose not to appeal his suspension and
decided instead to step down from his position. As a result, Ladd has failed to
prove the necessary element of employer reprisal.
CONCLUSION
We find that Ladd failed to prove the four elements essential for prevailing
on a Whistleblower claim. Accordingly, for the reasons set forth, we affirm the
trial court’s January 20, 2022 Judgment dismissing Ladd’s La. R.S. 23:967
Whistleblower suit.
AFFIRMED
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