The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
16-74
THAD WELCH
VERSUS
INTERIM SUPERINTENDENT, BURNELL LEJEUNE, ET AL.
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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2014-6208
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE
**********
BILLY HOWARD EZELL
JUDGE
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Court composed of John D. Saunders, Billy Howard Ezell, and James T. Genovese,
Judges.
AFFIRMED.
Genovese, J., dissents.
Larry Lane Roy
Brown Sims, P.C.
600 Jefferson St., Suite 800
Lafayette, LA 70501
(337) 484-1250
COUNSEL FOR PLAINTIFF/APPELLANT:
Thad Welch
Courtney T. Joiner
Hammonds, Sills, Adkins & Guice LLP
2431 S. Acadian Thruway, Suite 600
Baton Rouge, LA 70808
(225) 923-3462
COUNSEL FOR DEFENDANTS/APPELLEES:
Lafayette Parish School Board
Burnell LeJeune, Interim Superintendent
EZELL, Judge.
Thad Welch appeals the decision of the trial court below granting an
exception of no cause of action in favor of Burnell LeJeune and the Lafayette
Parish School Board (hereinafter LPSB). For the following reasons, we hereby
affirm the decision of the trial court.
In the spring of 2012, Mr. Welch was contacted by a prior Superintendent of
Schools for Lafayette Parish, Dr. Pat Cooper, who offered him a position
overseeing the maintenance of the school facilities in the parish. The LPSB hired
him, creating the position of a ―Special Assistant to the Superintendent-Facilities,
Maintenance, Grounds, and Transportation.‖ In the spring of 2013, the LPSB
eliminated funding for Mr. Welch‘s position. Dr. Cooper was fired as
superintendent, and Mr. LeJeune was installed as interim superintendent. As Mr.
Welch‘s position had been defunded by the LPSB, Mr. LeJeune told him that he
was terminated. Mr. Welch was offered another job in the school system, but the
pay was dramatically less than in his prior position, so he refused that offer.
Instead, Mr. Welch filed the current suit against Mr. LeJeune and the LPSB,
alleging wrongful termination. Mr. LeJeune and the LPSB filed an exception of no
cause of action, which was granted by the trial court, thereby dismissing Mr.
Welch‘s claims. From that decision, Mr. Welch appeals.
Mr. Welch asserts one assignment of error on appeal: that the trial court
erred in granting Mr. LeJeune and the LPSB‘s exception of no cause of action,
thereby dismissing his suit. We disagree.
―‗The function of the peremptory exception of no cause of
action is to question whether the law extends a remedy against the
defendant to anyone under the factual allegations of the petition.‘‖
Washington Mut. Bank v. Monticello, 07-1018, p. 7 (La.App. 3 Cir.
2/6/08), 976 So.2d 251, 256 (quoting Cleco Corp. v. Johnson, 01-175
(La.9/18/01), 795 So.2d 302), writ denied, 08-530 (La.4/25/08), 978
So.2d 369. ―A ‗cause of action,‘ when used in the context of the
peremptory exception of no cause of action, refers to the operative
facts that give rise to the plaintiff‘s right to judicially assert the action
against the defendant.‖ Bogues v. Louisiana Energy Consultants, Inc.,
46,434, p. 3 (La.App. 2 Cir. 8/10/11), 71 So.3d 1128, 1130 (citing
White v. St. Elizabeth B.C. Bd. of Dirs., 45,213 (La.App. 2 Cir.
6/2/10), 37 So.3d 1139). ―‗The petition must set forth the material
facts upon which a cause of action is based; the allegations must be
ultimate facts; conclusions of law [or] fact, and evidentiary facts will
not be considered.‘‖ Sparks v. Donovan, 04–388, p. 4 (La.App. 3 Cir.
10/13/04), 884 So.2d 1276, 1279 (quoting Parish of Jefferson v. City
of Kenner, 95–266 (La.App. 5 Cir. 10/31/95), 663 So.2d 880).
Miller v. Desoto Reg’l Health Sys., 13-639, pp. 4-5 (La. App. 3 Cir. 12/11/13), 128
So.3d 649, 655, writ denied, 14-294 (La. 4/11/14), 138 So.3d 609 (alteration in
original). ―In reviewing the judgment of the district court relating to an exception
of no cause of action, appellate courts should conduct a de novo review because the
exception raises a question of law and the lower court‘s decision is based solely on
the sufficiency of the petition.‖ Ramey v. DeCaire, 03-1299, pp. 7–8 (La. 3/19/04),
869 So.2d 114, 119. Thus, we will perform a de novo review of the record to
determine if Mr. Welch‘s petition sufficiently states facts that would grant him the
right to judicially assert the current action against the LPSB.
Mr. Welch separates his brief into his allegations against Mr. LeJeune and
those against the LPSB. We will do likewise, taking his claims against Mr.
LeJeune first.
Mr. Welch‘s allegations against Mr. LeJeune seem to be nothing more than
an attempt to shoot the messenger, so to speak. He does not allege that Mr.
LeJeune was involved in the decision of the LPSB to eliminate the funding for Mr.
Welch‘s position in any way. He does not allege that Mr. LeJeune recommended
he be terminated. Mr. Welch merely claims that Mr. LeJeune never gave him ―a
reason for his termination, except that the Interim Superintendent advised him that
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there was simply ‗no money in the budget‘ to fund the position. . . .‖ According to
his own petition, this was true, as the LPSB allegedly did remove his salary from
the line-item budget for the board. Mr. Welch essentially makes no allegations
against Mr. LeJeune except that he was the person who implemented the will of the
LPSB when the position of ―Special Assistant to the Superintendent-Facilities,
Maintenance, Grounds, and Transportation‖ was eliminated from the budget.
Moreover, Mr. LeJeune, in acting to carry out the will of the LPSB, was
immune from suit under Louisiana Revised Statutes 17:439. That statute states, in
pertinent part:
Except as otherwise provided in this Section, no person shall
have a cause of action against any school employee based on any
statement made or action taken by the school employee provided that
the action or statement was within the course and scope of the school
employee‘s duties as defined by the school board in which the school
employee is employed and was within the specific guidelines for
school employee behavior as established by that school board.
La.R.S. 17:439(A).
There is no allegation in Mr. Welch‘s petition that Mr. LeJeune acted
outside the course and scope of his duties as interim superintendent. In fact, Mr.
Welch does not even imply that implementing the budget adopted by the LPSB
was not Mr. LeJeune‘s direct duty as superintendent. The trial court was correct in
ruling that Mr. LeJeune was immune from suit for his actions and in granting the
exception of no cause of action in favor of Mr. LeJeune.
Mr. Welch next contends that the trial court‘s decision should be set aside as
to the LPSB, because he claims he was not afforded constitutional due process of
law prior to his termination.
In Louisiana, the employer-employee relationship is a
contractual one. Employment contracts are either fixed term or
terminable at will. Read v. Willwoods Community, 14-1475, *6
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(La.3/14/15), 165 So.3d 883, 887, 2015 La. LEXIS 494. Under a fixed
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.‖ Id. Conversely, an ―at will‖ employee is subject to dismissal
by his employer at any time, for any reason, without the employer
incurring liability for wrongful discharge. Id. In the absence of a
contract or an agreement establishing a fixed term of employment, the
employee is considered to have an ―at will‖ employment by default.
Quebedeaux v. Dow Chem. Co., 01-2297 (La.6/21/02); 820 So.2d 542,
545.
Barton v. Jefferson Par. Sch. Bd., 14-761, pp. 11-12 (La. App. 5 Cir. 5/28/15), 171
So.3d 316, 323-24.
It is important to note that Mr. Welch does not allege that he was a tenured
teacher, nor does he allege that he had any contract with the LPSB. Consequently,
Mr. Welch did not possess a state or federally protected property interest in
maintaining his employment and, therefore, was not entitled to due process prior to
being terminated. See Alexander v. Lafayette Par. Sch. Bd., 08-1378 (La. App. 3
Cir. 4/1/09), 7 So.3d 135 (citing Wilhelm v. Vermilion Parish Sch. Bd., 598 So.2d
699 (La.App. 3 Cir. 1992)); Harris v. W. Carroll Par. Sch. Bd., 605 So.2d 610
(La.App. 2 Cir.), writ denied, 609 So.2d 255 (La.1992).
He was, however, due any rights set forth in the procedures established by
the LPSB under Louisiana Revised Statutes 17:81.5. Id. Nevertheless, nowhere
within the four corners of his petition does Mr. Welch set forth any facts
establishing the LPSB‘s procedures for the dismissal of non-tenured school
employees, nor does he allege any specific or even general violation of any such
procedures. His conclusory allegations concerning LPSB politics or the budgetary
priorities of the LPSB are insufficient to state a cause of action. Because he failed
to state in his petition ultimate facts that would allow him a remedy under the law,
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the trial court correctly granted the LPSB‘s exception of no cause of action and his
claim was properly dismissed.
For the above reasons, we hereby affirm the decision of the trial court.
Costs of this appeal are hereby assessed against Mr. Welch.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform
Rules—Courts of Appeal. Rule 2–16.3.
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