DAVID A. MONTS VERSUS BOARD OF SUPERVISORS OF LOUISIANA
STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE
D/B/A UNIVERSITY OF NEW ORLEANS, PATRICK M. GIBBS, FRANK H.
SCHAMBACH AND GUSTAVE S. CANTRELL

NO. 2001-CA-1497, COURT OF APPEAL FOURTH CIRCUIT,
STATE OF LOUISIANA

In this appeal, plaintiff contends that the trial court erred in granting
defendants' motion for summary judgment, and that the judge abused his
discretion in failing to refuse or continue the defendants' motion for
summary
judgment.  For the reasons set forth below, we affirm.

FACTS AND PROCEDURAL HISTORY

David Monts was hired by the University of New Orleans (UNO) on
January 7, 1991 as an electrical engineer.  That position is not
classified as civil service employment, and no employment contract or
other promise of continued employment existed.  As a result, Mr. Monts
was employed "at-will", meaning that he could be terminated at any
time with or without cause.  On or about July 15, 1996, Mr. Monts was
placed on administrative leave, and informed that he was to be
terminated, effective thirty days later, on August 15,1996.  In
correspondence dated July 15, 1996, John Michael Parnon, plaintiff's
supervisor, explained to Monts that he was being discharged for his
continued disruption of departmental meetings, and his negative
attitude to his employment with UNO.

Plaintiff filed suit, claiming that he was terminated for reporting
unethical and hazardous practices to his supervisors at UNO and their
legal advisors at the Phelps Dunbar law firm.  In addition, Monts sued
three UNO administrators in their official and individual capacities
alleging the following causes of action:

1. Wrongful discharge in violation of a purported "public interest
   exception to the employment at-will doctrine";
2. Breach of contract;
3. Failure to bargain in good faith;
4. Wrongful discharge in violation of Louisiana's Whistle Blower
   Statute, La. R.S. 42:1169;
5. Intentional infliction of emotional distress;
6. Conspiracy to retaliate for filing an age discrimination complaint
   with the EEOC under La. R.S. 51:2256 (Louisiana Human Rights Act):
7. Deprivation of his constitutional free speech rights under color of
   state law in violation of 42 U.S.C. Section 1983; and
8. Deprivation of constitutionally protected rights under
   La. Const. Art.  I, Section 7.

After extensive discovery, defendants filed a Motion for Summary
Judgment on October 29, 1999.  Plaintiff filed an opposition to this
motion on May 1, 2000.  After a hearing on May 5, 2000, the trial
court granted defendants' motion, but mistakenly did so "without
prejudice."  On motion of defendants and after a hearing, the trial
court amended its judgment to reflect that it was, in fact, "with
prejudice."  On appeal to this court, the matter was remanded back to
the trial court on the grounds that neither judgment was final.  On
March 27, 2001, the trial court issued an order re-setting defendants'
motion for hearing on June 15, 2001.  However, on April 6, 2001,
before the hearing took place, the trial court rendered a judgment
again granting the defendants' Motion for Summary Judgment and
dismissing plaintiff's suit prejudice.  Plaintiff subsequently filed
this appeal.1

DISCUSSION

Plaintiffs assert that the trial court erred in granting defendants'
motion for summary judgment and dismissing his claims for wrongful
discharge in violation of U.S. Const. Amends. I and XIV and 42
U.S.C. Section 1983.

Appellate courts review summary judgments de novo, using the same
criteria applied by trials to determine whether summary judgment is
appropriate.  Guy v. McKnight, 99-2284 (La. App. 4 Cir. 2/16/00), 753
So. 2d 955, 957, writ denied, 2000-0841 (La. 6/16/00), 764 So. 2d 963;
Reynolds v. Select Properties, Ltd., 93-1480 (La. 4/11/94), 634 So.2d
1180, 1182.

Summary judgment is properly granted only if the pleadings and
evidence show that there is no genuine issue of material fact, and
that the mover is entitled to judgment as a matter of law.
La. C.C.P. Art 966 (C).  Article 966 has recently been amended; the
burden of proof remains with the mover to show that no genuine issue
of material fact exists.  Now , however, once the mover has made a
prima facie showing that the motion should be granted, the burden
shifts to the non-moving party to present evidence demonstrating that
material factual issue remain.  Once the motion for summary judgment
has been properly supported by the moving party, the failure of the
non-moving party to present evidence of a material factual dispute
mandates the granting of the motion. See Hayes v. Autin, 96-287
(La. App. 3 Cir. 12/26/96), 685 So 2d 691.  We must review the summary
judgment with reference to the substantive law applicable to the case.
To affirm summary judgment, we must find that reasonable minds would
inevitably conclude that the mover is entitled to judgment as a matter
of the applicable law on the facts before the court. Washington
v. State, Dept. of Transp. & Development, 95-14 (La.  App. 3
Cir. 7/5/95), 663 So. 2d 47.

The U.S Fifth Circuit has set forth the elements of a First Amendment
retaliation claim as follows:

As a threshold requirement, a public employee claiming violation of
freedom of speech must show that his speech is entitled to judicial
protection under the First Amendment.  It is so entitled only if it
addresses a matter of "public concern," which " must be determined by
the content, form, and context of a given statement, as revealed by
the whole record."  This determination is a question of law to be
resolved by the court.  If the speech does not address a matter of
public concern, a court will not scrutinize the reasons motivating a
discharge allegedly in retaliation for that speech.  If the speech at
issue does address a matter of public concern, the court then engages
in the so-called "Pickering/Connick test, " balancing "the interests
of the [employee], as a citizen, in commenting upon matters of pubic
concern [against] the interest of the state, as an employer, in
promoting the efficiency of the public services it performs through
its employees."  The more central a matter of public concern is to the
speech at issue, the stronger the employer's showing of
counter-balancing governmental interests must be.  Only if the court
finds that the employee's First Amendment rights outweigh the
government's interest in the effective provision of public services
does the fact-finder proceed to consider the separate issue of
causation.

Mt. Health City School Dist. Bd. of Educ. V. Doyle [429 U.S. 274, 97
S.Ct. 568, 50 L.Ed.2d 471 (1977)] mandates that the employee must
demonstrate that his protected conduct was a substantial motivating
factor in his discharge.  The employer then has the burden of showing
a legitimate reason for which it would have discharged the employee
even in the absence of his protected conduct.  The employee can refute
that showing by evidence that his employer's ostensible explanation
for the discharge is merely pretextual.

Coughlin v. Lee, 946 F.2d 1152, 1156-57 (5th Cir. 1991) (citations
omitted).

Monts argues that his complaints about issues affecting engineering
design standards and fire and safety code enforcement on the UNO
campus, as well as about other improper acts of defendants, address a
matter of public concern.  Specifically, Monts alleges that he engaged
in protected speech, which defendants characterized as disruptive and
indicative of a negative attitude, in at least four contexts. First,
he complained at Mr. Parnon's staff meetings about Mr.  Schaumbach's
[sic] and Mr. Cantrell's2 tendency to overrule or ignore the
recommendations of design professionals on issues of architectural and
engineering design, and their tendency to implement architectural and
engineering design projects without complete review by a design
professional.  Further, he researched and copied from the public
record in the UNO library an excerpt from the "UNO 1995-96 Budget,"
including salary and merit increase information, and made photocopies
of the information for four of his colleagues , including Parnon, at
their request. Additionally he reported to Mr. Schaumbach [sic] his
belief that Mr.  Cantrell "has used his position of power to push
through projects of special interest to the campus VIPs, especially
his boss's boss, Pat Gibbs," and other complaints about Mr. Cantrell's
abusive and harassing conduct.  Finally, he reported to UNO's
attorneys at Phelps Dunbar a host of " problems which needed to be
addressed" regarding design standards and code enforcement during two
face-to-face meetings with those attorneys.3

In the instant case, review of the alleged code violations with which
Monts was concerned - if they were code violations at all - cannot be
said to be major matters of public safety. Monts complained of wire
size, plumbing, and leveling issues and the like.  It would not appear
that, even if they were present, these seemingly minor deviations from
the purest building practices suggest great threat to the public
health and safety.  The four instances of allegedly "protected speech"
that Monts cites signify his dissatisfaction in his workplace, and are
not matters sufficiently infused with public interest to support his
First Amendment retaliation claim.  Additionally, the context and form
of Monts' expression militate against the finding that he was
addressing matters of public concern as a citizen, rather than as a
disgruntled employee.  With the exception of the communication with
counsel (of which defendants ere allegedly unaware), all of Monts'
complaints, either verbal or in memoranda, were internal and more
specifically, internal within the Physical Plant Services Department.
He made no complaints to other UNO officials, nor did he report the
purported misconduct to the State Board of Ethics, which, as explained
in the Staff Handbook he had the full right to do.  Accordingly, it is
apparent that Monts' internal complaints were not primarily matters of
public concern, and this, not protected speech.  As such, under
Coughlin, we need not address any of the other issues presented by
plaintiff, since without protected speech, there can be no violation
of the First Amendment.  This assignment of error lacks merit..

Plaintiff next contends that the trial court abused its discretion in
failing to refuse or continue defendants' motion for summary judgment.
Plaintiff asked the trial judge to continue defendant's motion both at
the original hearing and after remand, seeking additional time to
depose Mr. Parnon, who lives out of state.  Plaintiff argues that the
fact to which Mr. Parnon was expected to testify would further justify
and strengthen his opposition to the motion for summary judgment.

There is no absolute right to delay action on a motion for summary
judgment pending further discovery.  Simoneaux v. E.I. DuPont de
Nemours, 483 So.  2d 908, 912 (La. 1986).  It is a matter clearly
within the trial judge's discretion.  ID. This case had been pending
for almost four years when the motion for summary judgment was first
heard, and extensive discovery had been undertaken.  Under the
circumstances, it was well within the discretion of the trial court to
deny a continuance in this situation.  This assignment of error lacks
merit

CONCLUSION

Accordingly, for the foregoing reasons, the judgment of the trial
court is affirmed.

AFFIRMED  February 27, 2002

 
FOOTNOTES:

1.  This appeal only concerns the plaintiff's First Amendment and
Section 193 claims; all other causes of action previously asserted
by plaintiff have been abandoned.

2.  Frank Schambach was the Director of Physical Plant Services.
Initially, Gustave Cantrell was the Assistant Director of Engineering
and Construction under Schambach, but beginning in October 1991,
Schambach unofficially divided responsibility in the Physical Plant
between Mr. Cantrell and Mr. Parnon.

3.  Defendants assert that at the time Monts was terminated, they
were unaware of his contact with the attorneys.
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