Former LSP Trooper Stelly’s discrimination suit offers abject lesson to angry white troopers upset over Col. Davis’ alleged fixation on promoting blacks, females: Don’t quit because the courts won’t deem “humiliation” to rise to the level of a “constructive discharge.”

Outgoing Louisiana State Police (LSP) Col. Lamar Davis, who was recognized and praised at the meeting of the Louisiana State Police Commission (LSPC) of Thursday, December 14, 2023, but who has angered many white male LSP troopers with his alleged total fixation on hiring and promoting black and female cadets and troopers irrespective of alleged stronger credentials of their white male counterparts.

As we’ve published features leading up to the transition away from Gov. John Bel Edwards and his choices to head Louisiana State Police (Lamar Davis as Colonel and Chavez Cammon as Chief of Staff) and toward Governor-Elect Jeff Landry and his respective choices (Robert Hodges and Frank Besson), we have explained that they won’t enjoy even a brief “honeymoon” period whatsoever, and we’ve stressed that Landry, in his current role as Louisiana’s Attorney General, should certainly be cognizant of that fact because he is keenly aware of all of the lawsuits filed against LSP.

As far back as October 17, 2022, we provided this initial warning that plenty of white male LSP troopers have been fuming mad at Davis’ now readily-acknowledged fixation on promoting black and female troopers over white male counterparts who have alleged that they have superior qualifications.

White male troopers’ angst and hostility toward Davis only intensified when, on April 20, 2023, members of the LSPC made it crystal clear that they expect significant ramped-up hiring and promotions of black and female troopers.

Let us briefly provide from the two linked features above two videos (there is a third video on the first link above of Sound Off Louisiana’s Robert Burns letting the LSPC members know of the white male trooper fury that was beginning to reach a boiling point):  #1) a brief video clip supplied by those sympathetic to the plight of the white male troopers of Davis readily admitting that he plans to “make change” regarding the racial and gender makeup of LSP, and #2) a video clip of the LSPC members making it clear they expect Davis to honor his commitment in that regard.  Here are the two videos:

LSP Col. Lamar Davis testifies before the Louisiana Senate Committee on LSP Oversight that the agency has been historically comprised of “white males, ” and further states that the agency has, “got to make change.”

April 13, 2023 LSPC meeting during which LSPC Chairman Eulis Simien, Jr., after pressing for months for LSP demographic data, indicates to LSP Col. Davis and Chief of Staff Chavez Cammon that LSP needs, “to be conscious of what our community looks like,” in making future hiring and promotional decisions.

In that second linked feature above of April 20, 2023, we also revealed the fact that one former white LSP trooper, John Stelly, got so frustrated that he filed this March 1, 2023 Federal lawsuit alleging reverse discrimination.  Since the filing of that lawsuit, Stelly has amended the suit twice as a result of LSP filing Motions to Dismiss.  In the second amendment to his suit, Stelly added both former LSP Col. Kevin Reeves and Davis as Defendants in their official capacities.

We have waited until a meaningful ruling in the suit transpired to give an update on the case.  That happened on Monday, December 11, 2023 when Federal Judge Greg Gerard Guidry issued this Order and Reasons for Ruling entailing LSP’s two Motions to Dismiss.  The document is a must-read for any white male trooper considering suing LSP over Davis’ alleged hiring and promoting practices (and we know of several such troopers strongly considering actions similar to Stelly’s).  Let’s take a look at a few highlights from Guidry’s Order and Reasons:

Stelly, a white former Louisiana State Police lieutenant, filed the instant suit against LSP, alleging it had failed to promote him to a captain position because of his race, and thereby constructively discharged him, in violation of 42 U.S.C. § 1981 and Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. R. Doc. 2.

Stelly reasserted his claims under Title VII against LSP, but, now recognizing his claims against LSP under Section 1981 to be barred by sovereign immunity, see R. Doc. 49, substituted Reeves and Davis as defendants to those claims. Stelly alleges Reeves and Davis denied him promotions to captain because of his race on several occasions.

Stelly also alleges Davis failed to promote him to captain in retaliation for Stelly’s complaint to his supervisor that he was not being promoted because of his race and “humiliated” Stelly and “made [his] work conditions so intolerable that a reasonable employee would feel compelled to resign” by failing to promote Stelly to captain.

1.      Failure to Promote

 

As is relevant here, Title VII provides, “It shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race.

As to direct evidence, Stelly points to his allegation that he was told in 2019 “the Department’s position was that a black trooper would be selected” for the open trooper-level position of Public Information Officer and the racial preference was “just the way it is.” Id. at 9. However, as the Fifth Circuit has explained, direct evidence of discrimination constitutes “[a] statement or document which shows ‘on its face that an improper criterion served as a basis—not necessarily the sole basis, but a basis—for the adverse employment action[.]’” Herster v. Bd. of Supervisors of Louisiana State Univ., 887 F.3d 177, 185 (5th Cir. 2018) (quoting Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 993 (5th Cir. 2005)). Even presuming this statement constitutes direct evidence of discrimination in LSP’s hiring for the Public Information Officer position, for which Stelly did not apply, it does not indicate in any way that the adverse employment action challenged here—LSP’s failure to promote Shelly on July 9, 2021—was racially motivated. Thus, the Court must consider whether Stelly has adequately stated his claim via circumstantial evidence.

As to LSP’s alleged failure to promote Stelly on July 9, 2021, Stelly alleges Lieutenant Robert Burns, a non-white individual, was promoted to captain in LSP’s Operational Development Division and Lieutenant Salem El Amin, a black individual, was promoted to captain in LSP’s Gaming Enforcement Division, instead of Stelly. R. Doc. 59 at 7–9. Stelly asserts he was “clearly more qualified” than Burns and Amin because he was listed higher on the “eligible list” for promotion based on his examination results and had more years of service in the LSP and as a lieutenant than Burns and Amin. Id. LSP argues these assertions are inadequate to allege that Stelly was more qualified than Burns or Amin because Stelly “fails to allege how he may have had any qualification to command” the Operational Development and Gaming Enforcement divisions specifically, pointing out that “[s]imply holding the highest examination grade and the most in years-in-service does not necessarily qualify someone to command a Gaming department with no actual gaming experience.” R. Doc. 80 at 3. While this may be true, and while LSP may ultimately be able to show that Stelly was not in fact more qualified for those specific positions than Burns and Amin based on other criteria, at the Rule 12(b)(6) stage Stelly’s assertions are adequate to plead plausibly that he was more qualified than Burns and Amin for the promotions he applied for but they received. Accordingly, Stelly has set forth allegations that enable the court to reasonably infer his employer discriminated against him in violation of Title VII, see Cicalese, 924 F.3d at 767, and LSP’s Motion to Dismiss must be denied as to this claim.

1.      Constructive Discharge

 

It is uncontested that Stelly retired from his position in the LSP on December 18, 2021. However, Stelly characterizes his retirement as a constructive discharge, arguing he was “humiliated into retiring” by LSP’s failure to promote him to captain. To prove a constructive discharge, a “plaintiff must establish that working conditions were so intolerable that a reasonable employee would feel compelled to resign.” Faruki v. Parsons, 123 F.3d 315, 319 (5th Cir. 1997).

Despite the jury’s finding that the plaintiff had in fact been discriminatorily passed up for promotions, the court reversed the jury’s verdict on constructive discharge, explaining that, even considering that discrimination, the plaintiff’s “resignation, as a matter of law, was not justified by working conditions that had become so intolerable that no reasonable person could have worked there under those conditions.” Brown v. Kinney Shoe Corp., 237 F.3d 556, 566 (5th Cir. 2001). That is, even considering the Brown plaintiff’s successful showing that he was discriminated against by his employer, the Fifth Circuit held the allegation of even a repeated discriminatory failure to promote alone was inadequate to state a claim for constructive discharge.

Reeves and Davis argue Stelly’s Section 1981 claim against them for failure to promote is time-barred.

Having so determined, the Court holds Stelly’s failure to promote claim [against Reeves and Davis] to be subject to a one-year statute of limitations under Louisiana law. See Mitchell, 265 F. App’x at 376. Accordingly, this claim is time-barred, and must be dismissed.

Stelly offers no facts in support of his allegation that Davis’s July 9, 2021 failure to promote Stelly had anything to do with Stelly’s complaint to his supervisor; he simply alleges it to be true. Stelly’s bare allegation of retaliation thus fails to state a claim upon which relief can be granted.

I.       CONCLUSION

 

For the foregoing reasons, IT IS ORDERED that LSP’s Motion to Dismiss, R. Doc. 68, is GRANTED IN PART as to Stelly’s claim for constructive discharge, which is hereby DISMISSED, and DENIED IN PART as to Stelly’s claim for failure to promote under Title VII.

IT IS FURTHER ORDERED that Reeves and Davis’s Motion to Dismiss, R. Doc. 82, is GRANTED, and all claims brought by Stelly against those defendants are DISMISSED.

IT IS FURTHER ORDERED that Stelly’s Motion for Leave to File a Third Amended Complaint, R. Doc. 88, is DENIED. This denial shall be without prejudice to Stelly’s right to reassert a motion for leave to amend his Complaint as to the remaining failure to promote claim against LSP, should he so wish.

New Orleans, Louisiana, this 11th day of December, 2023.

 

Our money says Stelly will “so wish” and will take advantage of his opportunity to, “reassert a Motion for Leave to amend his Complaint as to the remaining failure to promote claim against LSP!”

So, for those former LSP troopers who got so frustrated under Davis that they retired, at least based upon Stelly’s suit, asserting “humiliation” by Davis as a basis for a Constructive Discharge claim is clearly not going to be sufficient argument to clear the hurdle and have such a claim survive.

For those who are still at LSP and are contemplating suing LSP over Davis’ alleged actions entailing discriminatory practices regarding promotions,  Stelly’s lawsuit and the above document which provides the Order and the Reasons should, if nothing else, serve as a useful guide in making a decision and, by all means, don’t leave if planning a suit for the reasons stated in the preceding paragraph.

Now, there are plenty (and we do mean plenty) more problematic matters entailing LSP personnel decisions and actions that should be revealed in coming weeks and months.

Accordingly, as we stated at the outset of this feature, if Landry, Hodges and/or Besson are hoping for a “honeymoon” period, we can assure them that there isn’t going to be one!  The frustration level at LSP for the rank of Lieutenant and below is running extremely high among many troopers.  Further, being blunt, Landry’s selections to head LSP (along with another top brass selection whom we’re for now keeping below radar) did absolutely nothing to reduce that frustration level.

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