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Legal Memorandum: Wrongful Termination of a Public Employee

Issue: In Louisiana, what facts must be proved in order to defeat a motion to dismiss a claim for wrongful termination of a public employee based on his or her partisan affiliation for failure to state a claim upon which relief can be granted?

Area of Law: Employee Law, Litigation & Procedure, Municipal, County and Local Law
Keywords: Dismissal of a claim; Wrongful termination; Public employee
Jurisdiction: Federal, Louisiana
Cited Cases: 891 F. Supp. 312; 479 U.S. 827; 470 U.S. 532; 671 So. 2d 927
Cited Statutes: 42 U.S.C. § 1983, and La. Const. Art. I, § 7; Federal Rule of Civil Procedure 12(b)(6); U.S. Const. amend. XIV; La. Const. art. X, § 8(A); La. Const. art. I, § 2
Date: 05/01/2010

Under Federal Rule of Civil Procedure 12(b)(6), a plaintiff’s claim may be dismissed for failure to state a claim upon which relief can be granted.

Rule 12(b) states that “[I]f, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56” … On a … 12(b)(6) motion, the [c]ourt must view the plaintiffs’ complaint in the light most favorable to the plaintiffs and must accept as true all of the factual allegations in the complaint.  The motion will be denied if the allegations support relief on any possible theory.  The court will “bend over backwards to avoid granting a 12(b) motion to dismiss.”

Citrano v. Allen Correctional Ctr., 891 F. Supp. 312, 315 (W.D. La. 1995) (citation omitted).

1.         42 U.S.C. § 1983, and La. Const. Art. I, § 7

A public employee who alleges that he or she was discharged solely because of his or her partisan political affiliation or non-affiliation states a claim for deprivation of constitutional rights secured by the First Amendment.  Elrod v. Burns, 427 U.S. 347 (1976).

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