The Louisiana First Circuit Court of Appeal recently held in Derbonne v. State Police Commission, No. 2019 CA 1455 (October 14, 2020), that an employee whose duties require that he or she report violations of state law is not precluded from pursuing a claim for unlawful reprisal under Louisiana’s anti-reprisal or whistleblower statute, La. R.S. 23:967.
La. R.S. 23.967 prohibits an employer from taking “reprisal against an employee who in good faith, and after advising the employer of the violation of law: (1) [d]iscloses or threatens to disclose a workplace act or practice that is in violation of [Louisiana] law[;] (2) [p]rovides information to or testifies before any public body conducting an investigation, hearing, or inquiry into any violation of law[;] [or] (3) objects to or refuses to participate in an employment act or practice that is in violation of law.”
Cathy Derbonne, the former executive director of the Louisiana State Police Commission, filed suit against the commission, alleging she was forced to resign in violation of La. R.S. 23:967, after investigating and reporting violations of state law by members of the commission and the Louisiana State Police. According to Derbonne, she learned that active classified members of the Louisiana State Police, through the Louisiana State Troopers Association (LSTA), and active members of the Commission were making political contributions and engaging in political activities in violation of the Louisiana Constitution, which prohibits state police officers in classified service and members of the commission from engaging in political activity. Additionally, she learned that a state police colonel and “at least four of his top deputies had received unlawful and unauthorized pay increases.”
In both instances, Derbonne reported the alleged illegal activity to the commission and multiple entities and individuals, including the Louisiana Board of Ethics, the governor of Louisiana and his counsel, and the Louisiana Legislative Fiscal Office. According to Derbonne, the commission failed to take any action against its members for their alleged illegal actions, and instead violated La. R.S. 23:967 by taking “‘reprisal against [Derbonne], including threatening her job, accusing her of false violations of law, removing her job duties, cutting her pay, and constructively discharging her[.]’”
In response to Derbonne’s lawsuit, the commission filed the Louisiana equivalent of a motion to dismiss, challenging whether a lawsuit should go forward as a matter of law. The commission asserted that (1) “Derbonne failed to plead sufficient facts to establish that her employer, the [c]ommission, had engaged in a workplace act or practice that resulted in an actual violation of state law” and (2) that “Derbonne admitted that it was her responsibility as [e]xecutive [d]irector of the [c]ommission to ensure that the [c]ommission and its members ‘abided by their obligations under the law’ and that, consequently, Derbonne [could not]claim whistleblower protection for those alleged acts of non-compliance that fell within her responsibility to report and correct.”
The trial court found, for the purposes of the motion to dismiss, that Derbonne did state facts sufficient to establish a violation of state law under La. R.S. 23:967; however, “[t]he trial court found … that because Derbonne’s actions fell within her normal job duties, those actions [were] not protected under La. R.S. 23:967.” Accordingly, the trial court granted the commission’s motion and dismissed Derbonne’s lawsuit with prejudice.
The Appellate Court’s Decision
The issue before the appellate court was whether La. R.S. 23:967 excludes “protests, reports, and oppositions to violations of [Louisiana] law by employees simply because [the employee’s] job may require such reporting.” On appeal, the First Circuit vacated the trial court’s decision and held that “an employee whose duties require that they report violations of law is not precluded from filing suit under La. R.S. 23:967.” The trial court had reasoned that Derbonne did not qualify as a whistleblower because she acted within her job responsibility to report and correct.
In reaching its decision, the trial court had relied on an argument presented in a law review article that contended that Louisiana courts that had adopted the “job duties exclusion” had failed to assess the language of the respective whistleblower statutes or provide any rationale for adopting the job duties exclusion.
The First Circuit, however, held that the use of the word “employee” in La. R.S. 23:967 encompassed any and all employees of the employer because “[t]he legislature clearly did not distinguish between those employees performing [reporting and compliance] duties and those not performing such duties.” Accordingly, the First Circuit held that “an employee whose duties require that they report violations of law is not precluded from filing suit under La. R.S. 23:967” and that Derbonne had stated a right of action under La. R.S. 23:967.
After Derbonne, the job duties exclusion likely would not apply to La. R.S. 23:967, but it would also likely not apply—at least in Louisiana’s First Circuit—to Louisiana’s Environmental Whistleblower Statute, La. R.S. 30:2027, despite persuasive authority adopted by Louisiana’s Fourth Circuit and the United States District Court for the Eastern District of Louisiana.
Further, it is worth noting that the U.S. Court of Appeals for the Fifth Circuit applies the job duties exclusion in the context of retaliation claims.
In addition, the Derbonne ruling is potentially significant because La. R.S. 23:967 is Louisiana’s general anti-retaliation statute. Unlike the federal antidiscrimination statutes, Louisiana’s Employment Discrimination Law (LEDL), La. R.S. 23:301 et seq., does not contain a broad anti-retaliation provision that applies to all forms of discrimination prohibited under the law. Accordingly, Louisiana’s anti-reprisal or whistleblower statute, La. R.S. 23:967, may provide protection against retaliation for a Louisiana plaintiff claiming discrimination in violation of the LEDL. The Derbonne holding is also potentially important to employers because payroll and human resource professionals who express concerns about allegedly discriminatory practices may find greater protection from retaliation pursuant to the reasoning of the decision.
Due to courts’ inconsistent application of the job duties exclusion, employers may want to take all complaints seriously—whether the employee’s duty is to report complaints or not—in assessing risk under Louisiana’s anti-reprisal statute.