author: JUDE G. GRAVOIS, Judge.

text:
    STATE of Louisiana v. Brett S. CASIMER.
    No. 12-KA-678.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 2013.

      Paul D. Connick, Jr., District Attorney, Terry M. Boudreaux, Gail D. Schlosser, Shannon K. Swaim, Assistant District Attorneys, Gretna, LA, for Plaintiff/Appellee.
    Gwendolyn K. Brown, Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges JUDE G. GRAVOIS, ROBERT M. MURPHY, and HANS J. LILJEBERG.
   JUDE G. GRAVOIS, Judge.

1 ^Defendant, Brett S. Casimer, appeals his sentences for forcible rape and second degree kidnaping, violations of La. R.S. 14:42.1 and 14:44.1, respectively. On appeal, he argues the following assignments of error:

1. The trial court erred in imposing an excessive sentence.
2. The trial court erred by failing to comply with the sentencing mandates of La.C.Cr.P. art. 894.1.
3. Defendant-appellant was denied the effective assistance of counsel as a result of his counsel’s failure to file a motion to reconsider sentence to preserve for appellate review his right to object, on specific grounds, to the excessiveness of his sentence.

For the reasons that follow, we find no merit to defendant’s assignments of error and affirm his sentences.

PROCEDURAL HISTORY

On September 29, 2011, the Jefferson Parish Grand Jury returned an indictment charging defendant, Brett S. Casimer, a deputy with the Jefferson Parish Sheriffs Office, with one count of aggravated rape, in violation of La. R.S. |a14:42, and one count of aggravated kidnapping, in violation of La. R.S. 14:44. Defendant was arraigned on September 30, 2011 and pled not guilty.

The case was tried before a 12-person jury on October 25, 26, and 27, 2011, after which the jury found defendant guilty of the respective responsive verdicts of forcible rape and second degree kidnapping. On March 8, 2012, the trial judge denied defendant’s motion for a new trial. On that same date, after defendant waived sentencing delays, the trial judge sentenced defendant on each count, forcible rape and second degree kidnapping, to ten years imprisonment with the Department of Corrections, two years of which were ordered to be served without the benefit of probation, parole, or suspension of sentence. The trial judge ordered defendant’s ten-year sentences to run concurrently. On March 22, 2012, defendant filed a motion for an appeal, which was granted on March 27, 2012.

FACTS

The record shows that defendant was an officer with the Jefferson Parish Sheriffs Office, who, while on patrol on November 9, 2009 between approximately 2:00 a.m. and 3:00 a.m., stopped the victim, I.W., for a traffic infraction while she was driving on Manhattan Boulevard in Harvey, Louisiana. I.W. testified that on that date, she was driving her sister’s car on Manhattan Boulevard with her boyfriend, Glen Allen, seated in the passenger seat, and with her one year old child in the backseat. She was driving carefully because she knew that she had two outstanding attachments for her arrest: one for not having a driver’s license, and another for not having a car seat for her child. She testified that she was driving the speed limit when a police car, which she had previously ^observed parked next to a nearby convenience store, pulled up next to her car while she was stopped at a red light. When she started driving forward from the light, the police car abruptly “jumped over” into her lane behind her. The officer driving the police car, later identified as defendant, activated his overhead lights. I.W. immediately brought her car to a stop. She advised defendant of her name and that of her sister, in whose name the car was registered. Defendant then ordered her out of the car, handcuffed her, and placed her in the backseat of his police car. Defendant eventually allowed Mr. Allen to leave with her child against her wishes.

I.W. testified that defendant returned to his vehicle, and again asked her for her name, at which time he advised her that she had “two tickets for traffic.” However, she said that defendant never told her why he was handcuffing or arresting her. Defendant kept I.W. handcuffed and drove down Manhattan Boulevard, ultimately stopping farther down Manhattan Boulevard at a beauty supply store near a Wal-Mart store. Defendant exited his vehicle, walked around to the passenger side of the backseat, opened the door, and told I.W. to “scoot over and open your legs,” which she did. Defendant then shined his flashlight on and viewed her open legs, and then closed the door. Defendant then got back into the vehicle and continued to drive down Manhattan Boulevard. Defendant again told I.W. she was going to jail, and stated that he was “tired of all this crying.” Defendant then drove by a Popeye’s Restaurant and then went a “back way” towards the rear of a building that was unfamiliar to her. Once in a secluded parking lot, defendant removed I.W. from the vehicle and walked her around the 1 ¿premises while inspecting the area with his flashlight. He then led her back to his vehicle, ordered her to sit down in the backseat, and removed her handcuffs. I.W. testified that her body was in the vehicle, but her legs were outside with both of her feet on the ground. Defendant then stood in front of I.W., unzipped his pants, and ordered her to perform oral sex on him.

I.W. testified that she said “no, no” to defendant, but she eventually submitted because she felt like she had no other choice. Defendant was wearing a black uniform, and she saw that he had a gun, a taser, and handcuffs. I.W. testified that defendant ejaculated in her mouth and she immediately “threw up” outside of the car. She was crying and defendant threw sanitary wipes at her, stating “clean yourself up.” I.W. used the wipes to clean her shirt and mouth and then discarded them on the ground in the vomit.

I.W. testified that she did not offer defendant oral sex in exchange for him not taking her to jail, which is what defendant claimed in his defense. Rather, it was defendant that told her that if she did not perform oral sex on him, she would go to jail. I.W. stated that she felt she had no choice but to comply with defendant’s demands because “he had his gun, his knife (sic), everything and all I kept thinking about is my two children.” On cross-examination, I.W. admitted that defendant never threatened her with physical violence.

Defendant then got back in the vehicle and drove towards I.W.’s house. Defendant dropped her off about a block from her house and told her that if she told anyone, “[njobody going to believe you.” She said she was not going to tell anyone because she was embarrassed. She then went inside and sat on her bed crying. When her sister came into her room to find out what was wrong, she told her about the incident. Her sister told her that she needed to call the police to report the incident. I.W. explained that she was scared because defendant knew |fiwhere she lived. However, less than an hour later, the crime was reported by family members and I.W. went to the police station to give a statement.

I.W. admitted on direct examination to a history of criminal activity, primarily theft and shoplifting, which she stated were committed in order to provide for her children. She denied ever offering sexual favors to any officer in exchange for remaining out of jail. She also acknowledged that in connection with this incident, she filed a civil suit against the Sheriffs Office, a result of which she received a monetary settlement.

I.W.’s ex-boyfriend, Mr. Alien, corroborated her testimony regarding the stop of their vehicle by defendant. He testified that he was surprised that defendant did not arrest him because he also had outstanding attachments (a fact noted by defendant in his own testimony). He left the scene as instructed by defendant, taking I.W.’s child to his house. Later that night, he received a phone call from I.W., who was “panicking.” He immediately went to her house, and when he arrived, I.W.’s sister, her cousin, and a “couple of detectives” were there. He then went to the police station to provide a statement.

Lt. Don English of the Jefferson Parish Sheriffs Department testified that on November 4, 2009, he investigated the subject incident. He was notified of the incident, which was reported to have occurred at the Dominion Power Ministries on Lapalco Boulevard, at approximately 4:56 a.m. When he arrived at the scene, he identified what appeared to be vomit in the parking lot with two white disposable cloths sitting on top of the vomit, which he believed corroborated the information provided by I.W. Also contained within the vomit was what appeared 17to him to be semen. Lt. English instructed the Crime Scene technician to collect samples and photograph the scene.

Lt. Mike Kinler, also of the Jefferson Parish Sheriffs Office, testified regarding department protocol to be observed when a person has been arrested. He testified that officers must notify headquarters while en route to the jail, and if an officer is transporting a prisoner of the opposite sex, the officer is required to call in his starting mileage, which is then compared to his ending mileage when the prisoner arrives at the jail. Lt. Kinler testified that there would never be a time when an officer would arrest someone and not notify headquarters. He stated that officers are required to follow these reporting procedures to protect themselves from potential false allegations. He stated that defendant was aware of these police department procedures.

Lt. Kinler also testified regarding defendant’s “trip sheet,” which tracks the officer’s field activity and is returned to the ranking officer at the end of every shift. Lt. Kinler reviewed defendant’s trip sheet from the night of the incident and testified that the log indicated that defendant conducted a traffic stop at 2:55 a.m. on Manhattan Boulevard, in Harvey, and that a traffic citation was not issued. Defendant’s trip sheet reported the ending time of the stop as 8:16 a.m., approximately twenty-one minutes later. The trip sheet also reflected that “necessary action was taken,” which meant to Lt. Kinler that the person who was ^stopped was likely given a verbal warning and released. The trip sheet did not indicate that any arrests were made.

Lt. Kinler also testified that when he was advised of the complaint regarding a rape performed during a traffic stop, he went to I.W.’s residence. While en route, he observed defendant parked in his patrol unit near the entrance to I.W.’s neighborhood. He asked defendant why he “was back there parked by himself,” to which defendant replied that he was patrolling. Lt. Kinler told defendant to patrol elsewhere, and then went to I.W.’s residence to take her statement. After speaking with I.W., Lt. Kinler stated that he was able to identify where the traffic stop had occurred, and from the logs maintained at headquarters, determined that it was defendant who had conducted the stop. Defendant was subsequently detained and advised that the “bureau” wanted to speak with him, to which defendant “nonchalantly” replied: “Yeah, I know what’s going on.”

Captain Grey Thurman of the Jefferson Parish Sheriffs Office testified that as Commander of the Personal Violence Unit, he was assigned to investigate the instant officer-related complaint. As part of his investigation, Captain Thurman spoke with Lieutenants Kinler and English, who had been involved in the initial stages of the investigation, and also conducted interviews with I.W. and defendant. Defendant was read his Miranda rights, which he subsequently waived, and provided three voluntary statements. Captain Thurman conducted multiple interviews with defendant because he did not believe that defendant’s explanations made “a lot of sense with respect to police procedure.” Specifically, Captain Thurman was confused about defendant’s decision to “take the female over the male, the handcuffing, the un-handcuffing, was she under arrest, was she not under |9arrest.” Additionally, based on the responses provided by defendant in his various statements, Captain Thurman did not believe that I.W. consented to perform oral sex on defendant and in fact did so under duress. After the interviews were completed, defendant was placed under arrest for aggravated rape. Captain Thurman then obtained and executed a search warrant on the patrol car defendant was driving at the time of the incident.

The State rested and the defense called Officer Jeffrey Easterby of the Jefferson Parish Sheriffs Office to the stand. He testified that on November 17, 2009, he was called to investigate a theft at the Winn-Dixie on Lapalco Boulevard in Jefferson Parish. While at the scene, Officer Easterby arrested I.W. for shoplifting. Upon arresting I.W., she stated that the “only reason she was being arrested was in retaliation for her filing a complaint against a fellow officer.” On cross-examination, Officer Easterby testified that at no time did I.W. offer to perform a sexual favor in exchange for not being arrested and taken to jail. Officer Easterby placed I.W. in the backseat of his patrol unit, called headquarters to advise that he was en route to the jail, and provided his starting mileage. When he arrived at the jail, he again called headquarters and provided his ending mileage and advised that I.W. had arrived at the jail, per standard police procedure.

Officer Chad Gaüthreaux of the Jefferson Parish Sheriffs Office testified that on February 2, 2011, he responded to a reported theft at the Wal-Mart store located on Lapalco Boulevard. Officer Gau-threaux testified in connection with this incident, he arrested I.W. for theft, simple battery, criminal trespass, and resisting arrest.

110Defendant testified in his own defense. He stated that prior to the instant offense, he had never been charged with or convicted of a crime. On November 4, 2009, he stopped I.W. for speeding and discovered that the owner of the vehicle had an outstanding attachment. When I.W. advised him that she did not have a driver’s license, he asked her to step out of the vehicle, whereupon she began crying, which extreme reaction raised a red flag in his mind, prompting him to place her in handcuffs. Defendant then said he brought I.W. to his patrol car to have her identify the photograph that appeared on his computer when he ran the license plate. Defendant stated that he then ran I.W.’s name on his computer and discovered that she had outstanding attachments.

Defendant then went back to I.W.’s vehicle and asked the passenger, Mr. Allen, to step out of the vehicle and provide him with his identification. He also placed Mr. Allen in handcuffs for officer safety and placed I.W. in the backseat of his police car. After discovering that Mr. Allen also had outstanding attachments, he asked I.W. if there was anyone she could call to take her child home. I.W. told defendant that there was no one she could call. Defendant testified that I.W. agreed to allow Mr. Allen to take the child home.

At this point, defendant testified that I.W. stated: “I don’t want to go to jail, I don’t want to go to jail, ... I’ll do whatever.” Defendant asked I.W. what she meant by that statement, to which she repeated: “I’ll do whatever. I don’t want to go to jail. I’ll do whatever.” By the tone of her voice, defendant testified that he believed her statement to mean: “I’ll offer you whatever she had available at that particular time [so] as to not allow her to be transported to the [Jefferson Parish | n Correctional Center].” Defendant testified that at no point did he tell I.W. that she was going to go to jail if she did not perform oral sex on him.

At this point, defendant testified that he allowed Mr. Allen to leave with I.W.’s child, because “we basically got an understanding, that, okay, I’ll do whatever.” Defendant testified that he then took I.W. in the direction of the fire station while they went back and forth as to what I.W. was offering to do for him. Defendant further testified that he never threatened to take I.W. to jail, but rather told her that he did not know if she was going to jail or not. Defendant testified that I.W. propositioned him, and stated her willingness to perform oral sex on him which she later voluntarily performed. Defendant also testified that he never threatened or forced I.W. into performing oral sex on him. He farther denied that he ejaculated in I.W.’s mouth. He admitted that despite being consensual, his actions were inappropriate and “bad judgment” for an on-duty police officer.

On cross-examination, defendant testified that it was not until they arrived at the last location, the church, that I.W. specified for the first time that she would perform oral sex on him. Before that time, the only thing I.W. had said was “I’ll do anything.” Defendant testified that in his opinion, I.W. made up this “elaborate story” for money.

ASSIGNMENTS OF ERROR NUMBERS ONE AND TWO

In his first and second assignments of error, defendant argues that his sentences are excessive. Specifically, he first argues that his background does not place him in the worst class of offenders based on the fact that he has no prior 112criminal history and had been employed by the police department for a number of years with no “history of any problems.” Secondly, defendant contends that although the trial judge ordered a presentence investigation (“PSI”) report, when sentencing defendant, the trial judge failed to "offer reasons for the sentences imposed, in violation of La.C.Cr.P. art. 894.1.

In response, the State argues that defendant did not file a motion to reconsider sentence pursuant to La.C.Cr.P. art. 881.1, limiting this Court’s review of his sentences for constitutional excessiveness only. The State further submits that the trial judge sentenced defendant to ten years imprisonment, rather than the possible eighty-year sentence recommended by the PSI report. The State asserts that the PSI report revealed that I.W. has suffered extensive emotional and mental anguish as a result of the instant crimes of violence committed by defendant, a law enforcement officer acting in his official capacity. Accordingly, the State maintains that defendant’s low range sentences are not excessive.

The record reflects that defendant did not file a motion to reconsider sentence pursuant to La.C.Cr.P. art. 881.1, nor did he orally object to his sentences at the time they were imposed. The failure to file a motion to reconsider sentence, or to state specific grounds upon which the motion is based, limits a defendant to a review of his sentence for constitutional excessiveness only. State v. Warmack, 07-311 (La.App. 5 Cir. 11/27/07), 973 So.2d 104, 108. Additionally, defendant did not raise the issue of the trial judge’s failure to comply with La.C.Cr.P. art. 894.1 at the trial court level, thus precluding defendant from raising this issue on | ¶ (¡direct appeal. Accordingly, the only issue to be considered herein is whether defendant’s sentences are unconstitutionally excessive.

The Eighth Amendment to the United States Constitution and Article I, § 20 of the Louisiana Constitution prohibit the imposition of excessive punishment. Although a sentence is within statutory limits, it can be reviewed for constitutional excessiveness. State v. Smith, 01-2574 (La.1/14/03), 839 So.2d 1, 4. A sentence is considered unconstitutionally excessive if it is grossly disproportionate to the offense or imposes needless and purposeless pain and suffering. Id. A sentence is grossly disproportionate if, when the crime and punishment are considered in light of the harm done to society, it shocks the sense of justice. State v. Lawson, 04-334 (La.App. 5 Cir. 9/28/04), 885 So.2d 618, 622.

A trial judge has broad discretion when imposing a sentence, and a reviewing court may not set a sentence aside absent a manifest abuse of discretion. The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, 07-67 (La.App. 5 Cir. 5/29/07), 960 So.2d 1127, 1130. The appellate court shall not set aside a sentence for excessiveness if the record supports the sentence imposed. State v. Pearson, 07-332 (La.App. 5 Cir. 12/27/07), 975 So.2d 646, 656. In reviewing a trial court’s sentencing discretion, three factors are considered: 1) the nature of the crime; 2) the nature and background of the offender; and 3) the sentence imposed for similar crimes by the' same court and other courts. Id., 975 So.2d at 656. Generally, the maximum sentences are reserved for cases involving the most serious violations of the offense charged and the worst type of offender. Id., 975 So.2d at 656.

114Pefendant was convicted of forcible rape and second degree kidnapping. The crime of forcible rape carries a sentence of imprisonment at hard labor for not less than five nor more than forty years, at least two years of which must be served without the benefit of probation, parole, or suspension of sentence. La. R.S. 14:42.1(B). The crime of second degree kidnapping carries the same sentence as forcible rape. La. R.S. 14:44.1. Thus, defendant’s total sentencing exposure was eighty years imprisonment, without the benefit of probation, parole, or suspension of sentence for at least two years.

Defendant was sentenced on March 8, 2012. Prior to sentencing, the defense argued that the facts and circumstances of the case, coupled with defendant’s lack of criminal history, required the imposition of the mandatory minimum sentences. After listening to the argument of counsel and reviewing the PSI report, as well as the sentencing guidelines set forth in La. C.Cr.P. art. 894.1, the trial judge sentenced defendant to ten years imprisonment on each count, to be served concurrently, without the benefit of probation, parole, or suspension of sentence for the first two years.

Defendant’s ten-year concurrent sentences for forcible rape and second degree kidnapping are on the low end of the possible sentencing exposure for these offenses. This Court could find no comparable cases where similar sentences were imposed on similarly situated defendants with facts analogous to the instant matter. However, based on the jurisprudence that reflects the imposition of harsher sentences for first-time offenders who commit forcible rape and second degree kidnapping, we find that defendant’s sentences are on the low end of the jurisprudentially accepted range.

In State v. Greer, 553 So.2d 892 (La.App. 4 Cir.1989), the Fourth Circuit upheld a forty-year sentence for a first-time offender convicted of forcible rape. | iaThe defendant broke into the victim’s home and used physical force to rape her. The victim sustained bruises to her face and a cut lip. In State v. Smith, 430 So.2d 31, 46-47 (La.1983), the Louisiana Supreme Court did not find the defendant’s thirty-year sentence for forcible rape excessive. The defendant had a steady work history and no prior convictions, but had two pending sex offense charges. The defendant fraudulently obtained entry into the victim’s home and raped her. The Supreme Court noted the defendant’s use of force bruised the victim’s nose.

Also, in State v. Meche, 95-797 (La.App. 3 Cir. 12/6/95), 664 So.2d 828, 831, writ denied, 96-0493 (La.5/10/96), 672 So.2d 920, the Third Circuit held that sentences of twenty-five years imprisonment at hard labor on a forcible rape conviction and twenty-five years imprisonment at hard labor on a second degree kidnapping conviction, with the sentences to run concurrently, and with the first five years of each sentence to be served without the benefit of probation, parole, or suspension of sentence, were not excessive. The appellate court found that although the defendant used a gun to commit the crimes, the sentences imposed were in the middle range provided by law, and even though the defendant was a first-time felony offender and the sentences were three times those recommended by the guidelines, the sentences were not excessive.

As for the sentences imposed for second degree kidnapping convictions . in other cases, in State v. Mathieu, 06-946 (La.App. 5 Cir. 5/29/07), 960 So.2d 296, 308-10, writ denied, 07-1424 (La.2/1/08), 976 So.2d 714, this Court upheld a first-time offender’s thirty-year sentence for second degree kidnapping despite his stable work history and his status as a father of four. The defendant approached the victim, who was his ex-wife, as she was leaving work and pushed her into her car while armed with a gun. He then drove her to Mississippi and made several 11fithreats to kill himself. After three or four hours, he drove her back to Gretna, where she escaped. The victim suffered no physical harm.

Also, in State v. Washington, 95-771 (La.App. 5 Cir. 2/14/96), 670 So.2d 1255, 1261-62, writ denied, 98-537 (La.9/25/98), 726 So.2d 7, the defendant’s maximum forty-year sentence for second degree kidnapping was upheld. The defendant and a companion pointed a gun at the victim and ordered him into the victim’s own car. The defendant then drove the victim and a passenger away from the scene to the victim’s girlfriend’s apartment where the defendant and his companion committed aggravated burglary.

In State v. Hawkins, 99-217 (La.App. 5 Cir. 7/2/99), 740 So.2d 768, 771, the defendant, a first-time offender, appealed only the excessiveness of his thirty-year sentence for a second degree kidnapping conviction. Although the defendant was a first-time offender, this Court noted that the defendant had a criminal background. This Court found that the defendant’s thirty-year sentence was neither an abuse of discretion nor unconstitutionally excessive, even when combined with his mandatory sentence of life imprisonment for aggravated rape.

In State v. Washington, 95-771 (La.App. 5 Cir. 2/14/96), 670 So.2d 1255, writ denied, 98-0537 (La.9/25/98), 726 So.2d 7, the defendant was convicted of aggravated burglary, second degree kidnapping, and carjacking. This Court upheld as not excessive a forty-year sentence imposed on the first-time offender for the second degree kidnapping conviction.

Based on the foregoing, we find that defendant’s ten-year concurrent sentences do not shock the sense of justice. Even though defendant had no |17criminal record, the nature of the crime shows that his sentences are not excessive after considering the circumstances of this case. This Court notes that defendant committed these crimes while on duty as a law enforcement officer, and used the authority of his position to select the victim and commit the crimes against her.

At trial, the trial judge listened to the victim’s testimony of the traumatic events that occurred after being stopped by defendant (a Jefferson Parish police officer acting in his official capacity). The victim testified that while defendant was standing in front of her, she could see his gun, a taser, and handcuffs on his waist belt. The victim testified that defendant forced her to perform oral sex on him, specifically testifying in detail as to the events of that morning.

In addition to the testimony presented at trial, the trial judge also ordered a PSI report, which he reviewed prior to sentencing defendant. The PSI report indicates that defendant was a thirty-nine year old first-time felony offender, who was convicted of forcible rape and second degree kidnapping, two crimes defined by La. R.S. 14:2(B) as crimes of violence. Defendant admitted that he did in fact receive oral sex from the victim while on duty as a Jefferson Parish Sheriffs Deputy, but maintained that the act was initiated by the victim because she did not want to go to jail. Due to the severe nature of the offense, which “resulted in the extensive emotional and mental anguish of the victim, as well as committing these offenses while he was sworn to protect and serve the public as a law enforcement officer,” the PSI report recommended that defendant be sentenced to the maximum of forty years for each conviction, to run consecutively.

Despite the eighty-year sentence recommendation, the trial judge imposed two ten-year concurrent sentences on defendant, with only the first two years, rather than the entirety of the sentence, to be served without the benefit of parole, 11sprobation, or suspension of sentence. The trial judge imposed sentences on the low range of defendant’s possible sentencing exposure.

The issue on appeal is whether the trial court abused its discretion, not whether another sentence might have been more appropriate. State v. Dorsey, supra. Considering the nature of the offenses, including the impact on the victim, and the fact that defendant was acting in his official capacity as a law enforcement officer at the time these crimes of violence were committed, we find that defendant’s low-range ten-year sentence for forcible rape and his low-range ten-year sentence for second degree kidnapping are not unconstitutionally excessive. These assignments of error are without merit.

ASSIGNMENT OF ERROR NUMBER THREE

In his final assignment of error, defendant argues that his counsel was ineffective for failing to file a motion to reconsider sentence pursuant to La.C.Cr.P. art. 881.1. He contends that the failure of his counsel to file this motion now precludes him from challenging the excessiveness of his sentences and the trial judge’s failure to articulate a basis for the sentence imposed under La.C.Cr.P. art. 894.1.

In response, the State argues that an ineffective assistance of counsel claim is more properly addressed through an application for post-conviction relief. Nevertheless, the State contends that defendant cannot prevail on the merits of his claim because there has been no showing that the sentences would have been any different even if his counsel had filed a motion to reconsider sentence.

Under the Sixth Amendment to the United States Constitution and Article I, § 13 of the Louisiana Constitution, a defendant is entitled to effective assistance of counsel. State v. McDonald, 04-550 (La.App. 5 Cir. 11/16/04), 889 So.2d 1039, 1191042, writ denied, 04-3088 (La.4/1/05), 897 So.2d 599. To prove ineffective assistance of counsel, a defendant must satisfy the two-prong test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland test, the defendant must show: (1) that counsel’s performance was deficient, that is, that the performance fell below an objective standard of reasonableness under prevailing professional norms; and (2) that the deficient performance prejudiced the defense. State v. Dabney, 05-53 (La.App. 5 Cir. 6/28/05), 908 So.2d 60, 63, citing Strickland v. Washington, supra. An error is considered prejudicial if it was so serious as to deprive the defendant of a fair trial, or “a trial whose result is reliable.” Strickland v. Washington, 466 U.S. at 687, 104 S.Ct. at 2064; State v. Serio, 94-131 (La.App. 5 Cir. 6/30/94), 641 So.2d 604, 607, writ denied, 94-2025 (La.12/16/94), 648 So.2d 388. To prove prejudice, the defendant must demonstrate that, but for counsel’s unprofessional conduct, the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. at 694,104 S.Ct. at 2068.

Generally, a claim of ineffective assistance of counsel is most appropriately addressed through an application for post-conviction relief rather than on direct appeal, so as to afford the parties an adequate record for review. State v. Robertson, 08-297 (La.App. 5 Cir. 10/28/08), 995 So.2d 650, 659, writ denied, 08-2962 (La.10/9/09), 18 So.3d 1279. However, when the record contains sufficient evidence to rule on the merits of the claim and the issue is properly raised by an assignment of error on appeal, it may be addressed in the interest of judicial economy. State v. Grimes, 09-2 (La.App. 5 Cir. 5/26/09), 16 So.3d 418, 426, writ denied, 09-1517 (La.3/12/10), 28 So.3d 1023; State v. Taylor, 04-346 (La.App. 5 Cir. 10/26/04), 887 So.2d 589, 595. Given the nature of this particular claim, wej^find that the appellate record contains sufficient evidence for this Court to address the merits of the ineffective assistance of counsel claim made by defendant herein.

Generally, the defendant’s failure to make a specific objection at the time of sentencing or to file a written motion to reconsider sentence precludes review of a sentence on appeal. State v. Fisher, 03-326 (La.App. 5 Cir. 7/29/03), 852 So.2d 1075, 1084, writ denied, 03-2545 (La.5/14/04), 872 So.2d 510. However, this Court routinely reviews sentences for constitutional excessiveness even in the absence of the defendant’s timely objection or the filing of a motion to reconsider sentence. Fisher, 03-326, 852 So.2d at 1084. Therefore, trial counsel’s failure, in this case, to file a motion to reconsider sentence did not prejudice defendant by denying him such review. See State v. Lewis, 09-783 (La.App. 5 Cir. 5/28/10), 43 So.3d 973, 989; State v. Smith, 09-1043 (La.App. 5 Cir. 6/29/10), 43 So.3d 261, 265.

Further, the mere failure to file a motion to reconsider sentence does not in and of itself constitute ineffective assistance of counsel. State v. Fairley, 02-168 (La.App. 5 Cir. 6/26/02), 822 So.2d 812, 816, writs denied, 03-1427 (La.4/23/04), 870 So.2d 290 and 08-2581 (La.1/30/09), 999 So.2d 755. A defendant must also “show a reasonable probability that, but for counsel’s error, his sentence would have been different.” Id.

In a case similar to the instant one, State v. Armstead, 07-741 (La.App. 5 Cir. 2/6/08), 980 So.2d 20, 26, writ denied, 08-0601 (La.10/3/08), 992 So.2d 1010, the defendant contended .that his sentence was excessive and asserted that the trial judge did not consider any mitigating factors as provided in La.C.Cr.P. art. 894.1. The defendant further contended that his counsel was ineffective because he did not object to the sentence or file a motion to reconsider sentence, depriving the defendant of appellate review of his sentence. Id. This Court found that since it |2iroutinely reviewed sentences for constitutional excessiveness even in the absence of a defendant’s timely objection or the filing of a motion to reconsider sentence, trial counsel’s failure to object to the sentence did not prejudice the defendant by denying him such review. Id.

Additionally, this Court found that, because defense counsel did not file a motion to reconsider sentence, the defendant had lost his right to a review of his argument concerning the trial court’s non-compliance with Article 894.1 on direct appeal. Id. However, this Court found that the defendant still had to show a reasonable probability that his sentence would have been different but for this error, and that the defendant had not met that burden of proof, since there was an adequate factual basis in the record for the sentence imposed. Id., 980 So.2d at 26-28.

In the'instant case, the trial court provided an adequate factual basis in the record for the sentences imposed, as more fully shown and discussed supra. As previously noted, the trial judge presided over the entire trial, heard all of the evidence, and reviewed the PSI report prior to sentencing defendant. Additionally, prior to sentencing, the trial judge further stated that he considered the guidelines set forth in La.C.Cr.P. art. 894.1. The trial judge’s failure to articulate every circumstance listed in La.C.Cr.P. art. 894.1 does not require a remand for resentencing. State v. Sanders, 98-855 (La.App. 5 Cir. 5/19/99), 734 So.2d 1276, 1279, writ denied, 99-1980 (La.1/7/00), 752 So.2d 175.

Further, we note that the trial court, in sentencing defendant, considered the PSI report, yet deviated substantially downward from the sentences recommended therein, thus rendering it speculative, and in all likelihood improbable, that the trial court would have granted a motion to reconsider sentence, if filed, in order to further lower defendant’s sentences. Considering all of the facts and arguments in 122this case, we find that defendant did not meet his burden of proof to show to a reasonable probability that his sentences would have been different if his trial counsel had filed a motion to reconsider sentence. Therefore, defendant did not receive ineffective assistance of counsel at sentencing because he did not prove that the failure of his counsel to file a motion to reconsider sentence resulted in his prejudice. This assignment of error is without merit.

ERRORS PATENT REVIEW

The record was reviewed for errors patent, according to La.C.Cr.P. art. 920; State v. Oliveaux, 312 So.2d 337 (La.1975); and State v. Wetland, 556 So.2d 175 (La. App. 5 Cir.1990). This review indicates that although the commitment reflects that defendant was properly advised of the time period for seeking post-conviction relief as required by La.C.Cr.P. art. 930.8., the transcript does not so indicate. When there is a discrepancy between the commitment and the transcript, the transcript prevails. State v. Lynch, 441 So.2d 732, 734 (La.1983). Accordingly, by way of this opinion, we hereby advise defendant that no application for post-conviction relief, including applications which seek an out-of-time appeal, shall be considered if filed more than two years after the judgment of conviction and sentence has become final under the provisions of La.C.Cr.P. arts. 914 or 922.

| ^CONCLUSION

For the reasons stated herein, we affirm defendant’s sentences. Further, we find that defendant did not receive ineffective assistance of counsel at sentencing.

AFFIRMED

      . The victim’s initials are used under the authority of La. R.S. 46:1844(W)(3).

      . I.W. was 22 years old at the time of the subject incident. Mr. Allen is not the child's father. The child was not in a car seat.

      .Later, Captain Grey Thurman testified that Wal-Mart provided video footage from the night of the incident, which revealed that a marked police car drove into the parking lot and pulled behind a wall. The wall obstructed any further view. Captain Thurman further testified that defendant's vehicle was caught on tape around 3:00 a.m., and that the camera footage was consistent with defendant and I.W.'s recollection of the events of that morning.

      . The victim testified that she was wearing a t-shirt, a bra, and pink shorts, but no underwear. She had finished her shift at Burger King at 2:00 a.m., returned home, changed clothes, and had taken Mr. Allen to his home to retrieve his work clothes because he had to go to work that day.

      . Elaine Schneida of the Jefferson Parish Sheriff’s Office Crime Lab was qualified as an expert in the testing and analysis of DNA. She testified that she took buccal cell samples from I.W. and defendant and compared them with the biological fluid recovered from a pair of defendant’s underwear. Both I.W. and defendant's DNA were present on the underwear. The analysis of the samples also indicated the presence of semen and saliva. I.W.’s "throw-up’’ was also tested, and was consistent with I.W.’s DNA.

      . Captain Grey Thurman corroborated the information provided by Lt. Kinler regarding the police department’s procedures for traffic stops, arrests, and transportation of prisoners.

      .Detective Steven Villere testified that he was asked to conduct a computer forensic examination of the traffic cameras to determine whether defendant’s patrol car drove through the intersection of Harvey and Manhattan Boulevards that evening. His examination revealed that defendant’s patrol car drove through the intersection at 2:52 a.m. and again at 3:22 a.m. Detective Villere also did a search of I.W.’s license plate and discovered that she drove through the same intersection at 1:56 a.m. and again at 2:52 a.m.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . All three of defendant's statements were played for the jury and entered into evidence.

      . Captain Thurman also believed defendant’s statement to be inconsistent because defendant had originally admitted to pulling over in the Wal-Mart parking lot to move I.W. over in the backseat to the passenger side so that he could keep an eye on her, but also told him that I.W. was not handcuffed, meaning that I.W. could have moved over in the backseat on her own.

      . However, on cross-examination, defendant "took the Fifth” when asked if he had ever received sexual favors from people he had detained on traffic stops.

      .On cross-examination, defendant testified that he did not issue a speeding ticket to I.W., which he described as a "bad decision on my part.”

      . Mr. Allen did not have a driver's license either, but provided defendant with a Louisiana identification card.

      . On cross-examination, defendant testified that he initially drove I.W. to the fire station to take her up on her offer, but after realizing that it was "not a good spot,” drove down Manhattan Boulevard to the Wal-Mart, where he stopped a second time to remove a hanger in I.W.'s possession and to move I.W. over to the passenger side of the backseat. Defendant also admitted that while in the Wal-Mart parking lot, I.W. again stated “I don't want to go to jail, I’ll do whatever,” despite him having previously told I.W. that she was not going to jail. Defendant testified that he did not know why I.W. was making those comments at that point in time since he had already advised her that he was not taking her to jail.

      . La.C.Cr.P. art. 881.1(E) states: ”[f]ailure to make or file a motion to reconsider sentence or to include a specific ground upon which a motion to reconsider sentence is based, including a claim of excessiveness, shall preclude the state or the defendant from raising an objection to the sentence or from urging any ground not raised in the motion on appeal or review.”

      . The PSI report was included in the record of this case. The report is considered confidential under La.C.Cr.P. art. 877. Article 877(A) states that a PSI report “shall be privileged and shall not be disclosed directly or indirectly to anyone” other than the sentencing court, the victim and other specified persons and entities. Article 877(C) provides that ”[t]he presentence investigation report, edited to protect sources of confidential information, shall.be made a part of the record if the defendant seeks post-conviction relief only on the grounds of an excessive sentence imposed by the court.”

      . See State v. Carter, 07-270 (La.App. 5 Cir. 12/27/07), 976 So.2d 196, 202.

      . See also State v. Mathieu, supra (this Court upheld a first-time offender’s thirty-year sentence for second degree kidnapping); State v. Sullivan, 41, 236 (La.App. 2 Cir. 8/23/06), 939 So.2d 516, 518 (the defendant received a fifteen-year sentence for second degree kidnapping where he pointed a gun at the victim and fired but missed); and State v. Brown, 41,883 (La.App. 2 Cir. 4/4/07), 956 So.2d 53 (a nineteen year old first-time felony offender’s twenty-year sentence for second degree kidnapping was found not to be excessive where the defendant had used a gun and threatened the lives of three victims).

      . It is well settled that if a trial court fails to advise or provides incomplete advice pursuant to La.C.Cr.P. art. 930.8, the appellate court may correct this error by informing the defendant of the applicable prescriptive period for post-conviction relief. See State v. Neely, 08-707 (La.App. 5 Cir. 12/16/08), 3 So.3d 532, 538, writ denied, 09-0248 (La. 10/30/09), 21 So.3d 272.


source: Caselaw Access Project

author: ROSEMARY LEDET, Judge.

license: Public Domain

text:
    Chequita McGOWAN v. HOUSING AUTHORITY OF NEW ORLEANS.
    No. 2012-CA-1418.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.
    See also, 388 Fed.Appx. 433.

      Ronald L. Wilson, New Orleans, LA, for Plaintiff/Appellant.
    Rachel W. Wisdom, Stone Pigman Walther Wittmann LLC, New Orleans, LA, for Defendant/Appellee.
    (Court composed of Chief Judge JAMES F. McKAY, III, Judge ROSEMARY LEDET, Judge PAUL A. BONIN).
   ROSEMARY LEDET, Judge.

|, This is a retaliatory discharge suit. Chequita McGowan, a former public employee, commenced this suit against her former public employer, the Housing Authority of New Orleans (“HANO”). She alleged that HANO discharged her for speaking out on matters of public concern in violation of the right to freedom of expression under La. Const, art. I, § 7. From the trial court’s decision granting HANO’s peremptory exception of no cause of action and its motion for summary judgment, Ms. McGowan appeals. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

For clarity of discussion, the factual and procedural background of this case is divided into three sections: (i) Ms. McGowan’s HANO employment history, (ii) HUD’s control of HANO, and (iii) Ms. McGowan’s lawsuit history.

(i) Ms. McGowan’s HANO employment history

In 1997, Ms. McGowan was hired by HANO as a Human Resource Analyst 3. Four years later, she was promoted to Human Resources Manager. She was later reassigned to the position of Director of Public Housing Management. | ¡¡This reassignment was followed by another one to the position of Director of Asset Management, the position she held in August 2005 when Hurricane Katrina struck the New Orleans area. Following the hurricane, Ms. McGowan was not recalled to work. In response, she filed a complaint with the Civil Service Commission. Thereafter, she was reinstated to her prior position of Director of Asset Management.

In May 2008, HANO eliminated the position of Director of Asset Management. According to Ms.' McGowan, she was told that she had to formally apply for any vacancy that existed and that if she was not selected, she would be terminated. According to HANO, Ms. McGowan was given the opportunity to apply for other HANO positions that came available. She was offered at least two positions — Senior Asset Manager and Senior Project Manager. She selected the Senior Project Manager position, the position she held in June 2010 when HANO discharged her.

(ii) HUD’s control of HANO

HANO is a local public housing authority (“PHA”), which was established under Louisiana law. See Leaman & Reynolds Ins. Agency, Inc. v. Housing Authority of City of New Orleans, 159 So.2d 365 (La.App. 4th Cir.1964)(describing HANO as “a public corporation organized pursuant to the provisions of LSA-R.S. 40:391 et seq.”). HANO was established to receive federal funding to develop low income housing for New Orleans area residents. It was established in conformity with the United States Housing Act of 1937, 42 U.S.C. § 1437, etseq. (the “Housing Act”).

IsThe Housing Act authorizes the Secretary of HUD to take control of a PHA that is in “substantial default.” 42 U.S.C. § 1437d. When in control of a PHA, the Secretary of HUD is authorized by the Housing Act to take the following actions:

• It may abrogate any contract to which the United States or a U.S. agency is not a party that substantially impedes correction of the agency’s default, if efforts to renegotiate the contract fail.
• It may demolish or dispose of PHA property ... including transferring properties to resident-supported nonprofit entities.
• If considered appropriate by HUD and permitted under state and local law, it may seek the establishment of one or more new PHAs or the consolidation of part or all of the PHA into other, well-managed PHAs.
• It will not have to comply with any state or local law relating to civil service requirements, employee rights (except civil rights), procurement, or financial or administrative controls that, in the opinion of the [Secretary of HUD] ..., substantially impedes correction of the default.

Barry Jacobs, HDR HDBK. OF HOUSING AND DEV. LAW § 2:134 (2012).

In February 1996, shortly before HANO hired Ms. McGowan, the Secretary of HUD, acting pursuant to 42 U.S.C. § 1437d, determined that HANO was in Insubstantial default” and took control of HANO. Throughout Ms. McGowan’s employment at HANO, HUD was in control of HANO.

Until April 2008, HANO employees, with minor exceptions not relevant here, were covered by the Louisiana Civil Service. See Department of State Civil Service v. Housing Authority of East Baton Rouge, 95-1959, p. 5 (La.App. 1 Cir. 5/10/96), 673 So.2d 726, 730 (noting that “[a]s nonex-cluded employees of a state agency or instrumentality, the PHA’s other employees are therefore classified civil servants of the State of Louisiana.”) In April 2008, the Secretary of HUD, again acting pursuant to the Housing Act, determined that it was necessary to exempt HANO’s employees from Louisiana civil service protections except for certain rules pertaining to civil rights (the “2008 HUD Determination”).

(iii) Ms. McGowan’s lawsuit history

Ms. McGowan has filed a trio of lawsuits, including this one, that is relevant to the instant appeal:

• In August 2007, she sued HANO in Civil District Court seeking back pay retroactive to November 2005 when she claimed she should have been called back to work after the hurricane. HANO settled this claim.
• In December 2008, Ms. McGowan and several other HANO employees • (collectively the “McGowan Petitioners”) filed suit against the Secretary of HUD and the Louisiana Civil Service Commission (“LCSC”) in federal district court challenging the 2008 HUD Determination and alleging discrimination by HANO itself (the “2008 Suit”). (HANO was not expressly named as a defendant in the 2008 Suit.) The McGowan Petitioners claimed that the Secretary of HUD improperly determined that the state civil service rules were substantially impeding efforts to correct HANO’s substantial default. The plaintiffs further claimed that the LCSC acquiesced in the 2008 HUD Determination and failed to act on their behalf | swhen they appealed that determination to the Civil Service Commission. In December 2009, the federal district court dismissed the suit. McGowan v. U.S. Dep’t of Housing and Urban Dev. (08-3335 E.D.La. 12/31/09). In an unpublished opinion, the federal Fifth Circuit Court of Appeals affirmed. McGowan v. U.S. Dep’t of Housing and Urban Dev., 388 Fed.Appx. 433 (5th Cir.2010).
• In December 2010, Ms. McGowan filed the instant suit alleging violations of constitutional and civil rights and seeking reinstatement and damages. In March 2012, HANO filed an exception of no cause of action and a motion for summary judgment. • Following a hearing, the trial court in May 2012 rendered judgment in favor of HANO granting its peremptory exception of no cause of action and its motion for summary judgment. The trial court thus dismissed Ms. McGowan’s suit with prejudice. In so doing, the trial court expressly found that “Ms. McGowan’s asserted speech did not involve a matter of public concern.”

From the trial court’s May 2012 judgment dismissing her suit, Ms. McGowan appeals.

DISCUSSION

Although a peremptory exception of no cause of action and a motion for summary judgment are different procedural devices, under the facts and circumstances presented in this case it is unnecessary to differentiate between those two procedural devices. Both the granting of an exception of no cause of action and the granting of a motion for summary judgment are reviewed under a de novo standard. Friel v. Louisiana Citizens Property Ins. Corp., 11-1032, pp. 4-5 (La.App. 4 Cir. 2/8/12), 85 So.3d 180,183 (no cause of action); Johnson v. Loyola University of New Orleans, 11-1785, pp. 7-8 (La.App. 4 Cir. 8/8/12), 98 So.3d 918, 923-24 (summary judgment).

Ms. McGowan’s claim against HANO is based on LA CONST Art. 1, § 7, pertaining to the right to freedom of expression. In the petition, she alleges that the violation consisted of the following:

The secretary of [HUD] ..., allegedly pursuant to the authority vested in him, removed all of the employees of [HANO] ... from the jurisdiction of the Civil Service Commission. The result of that action |7was to strip said employees of the civil service protections heretofore possessed by them.
Plaintiff, along with numerous other employees, filed a complaint with the federal court, challenging the removal of their civil service protection [the 2008 Suit]. The matter raised an issue of the utmost public concern. The public had an interest in knowing whether the secretary of HUD could remove from HANO employees rights and privileges enjoyed by most, if not all, public employees.
As a result of the complaint, HANO undertook retaliatory actions against nearly all, if not all, of the signatories to the complaint. Most, if not all, and particularly Plaintiff, were unjustly disciplined, demoted and/or terminated because of their participation in the complaint.
In retaliating against said employees, particularly Plaintiff, HANO violated their right to speak out on issues of public concern.

Thus, Ms. McGowan’s asserted protected speech is the 2008 Suit, which she and several other HANO employees filed challenging the legality of the 2008 HUD Determination and asserting discrimination by HANO.

To provide a framework for analyzing Ms. McGowan’s claim, it is necessary to summarize the allegations of the complaint underlying the 2008 Suit and the decisions of the federal district and appellate courts dismissing that suit. The underlying complaint can be summarized as follows:

• Effective April 17, 2008, all HANO employees were notified that they were no longer classified or unclassified civil service employees but rather “at will” employees pursuant to HANO’s secretary’s April 15, 2008 determination.
• HUD “has permitted [HANO] ... to engage in employment discrimination against its employees, which violates local, state, and federal employment laws.”
• “Petitioners have worked for [HANO] ... for years as Civil Service employees, and have a variety of undergraduate degree, graduate degrees, including but not limited to years of related work experience; however, such qualifications are no longer applicable for keeping their job, obtaining promotions, and receiving comparable compensation.”
|⅜* “Petitioners were stripped of their job security without any current governing rules, regulations and policies and procedures to ensure fair and lawful employment and contract and procurement practices.”
• Some HANO employees were told that “the jobs they held under the Louisiana Department of State Civil Services were no longer theirs and they had to apply for the job, if announced and be elected, and if they did not, they would be laid off. Employees responded to the informal announcement [lay off avoidance plan] to possibly keep their employment.”
• The McGowan Petitioners alleged that as a result of HUD’s decision to remove them from state civil service there have been unwarranted reductions in pay; promotions granted to undeserving employees; improper reassignments of employees; retaliation and harassment against employees; improper use of contractors instead of employees; and the replacement of qualified personnel with under-qualified and inexperienced personnel.

The McGowan Petitioners alleged that HUD’s and the Commission’s actions were improper for four reasons:

1) The reasons noted in the April 17, 2008 letter to HANO employees regarding Louisiana Civil Service Law and impediments are “alleged (nothing is conclusive).”
2) No reason is given why or in what way the civil service protection of HANO employees create such an impediment to HANO’s recovery.
3) HUD’s determination has permitted HANO to engage in obvious employment discrimination, which violates local, state, and federal laws.
4) The Commission’s failure to respond to its fiduciary responsibilities has enhanced HUD’s improper determination.

The McGowan Petitioners sought both injunctive relief and damages. The injunc-tive relief they sought was an order that HUD rescind the 2008 HUD Determination and return HANO to its previous classified and unclassified civil service classification, including applicable leave accrual without a break in service, service time, and automatic merit increases. The McGowan Petitioners also sought an order preventing and prohibiting all harassing, unfair, unlawful, discriminatory, 19and retaliatory employment practices. The damages the McGowan Petitioners prayed for included punitive damages and attorneys’ fees.

The federal district court, in dismissing the suit, noted that the McGowan Petitioners’ claims were that “they have lost their job security.” McGowan v. U.S. Dep’t of Housing and Urban Dev. (08-3335 E.D. La. 12/31/09) {unpub.). The court further noted that the crux of the complaint suggests that the McGowan Petitioners “are seeking redress for the collective whole of HANO’s state employees who wish to remain under the protections of the state civil service system.” Id. The court still further noted that they made “conclusory claims of discrimination, retaliation, and other alleged illegal acts committed by HANO’s staff — allegations that have nothing to do with HUD or the Secretary’s determination to waive state civil service rules.” Id.

Finding the Secretary of HUD’s action was authorized, the federal district court reasoned that it was undisputed that HUD had taken over HANO long before the 2008 Determination and that HANO was in “substantial default.” Id. The district court thus found that 42 U.S.C. § 1437d (J)(3)(D)(i)(V) expressly vested the Secretary of HUD with the discretion to waive Louisiana civil service requirements. The district court further found that the federal statute required only that the determination be in writing and set forth a basis for the determination that the waived civil service laws substantially impede the correction of the substantial default. The district court characterized the scope of its review of the Secretary of HUD’s discretionary determination as “exceedingly narrow” given Congress’ express grant of authority. Id. Finding the Secretary articulated a satisfactory explanation, the district court granted HUD’s motion for summary judgment. The district court also found that “[o]nce the Secretary made his determination to waive | instate civil service, the State had no authority to ignore the directive and had no standing to challenge it via an appeal to the Civil Service Commission.” Id.

In an unpublished opinion, the federal Fifth Circuit Court of Appeals affirmed. McGowan v. U.S. Dep’t of Housing and Urban Dev., 388 Fed.Appx. 433 (5th Cir.2010). In so doing, the Fifth Circuit provided the following synopsis:

This is an appeal of the district court’s dismissal of a pro se lawsuit by current and former employees of the New Orleans Housing Authority against the United States Department of Housing and Urban Development (HUD) and the Louisiana Civil Service Commission (LCSC). Common to all plaintiffs are claims that HUD improperly exempted the Housing Authority of New Orleans (HANO) from Louisiana civil service laws and that LCSC improperly acceded to HUD’s action. As briefly explained below, we affirm the district court’s dismissal.
We first address HUD’s liability. HUD took control of HANO, pursuant to 42 U.S.C. § 1437d(g). Under federal law, when HUD takes over a housing authority under § 1437d(g), it may exempt the housing authority from state civil service rules if those rules “substantially impede[]” HUD’s efforts to rehabilitate the housing authority. Id. § 1437d(j)(3)(D)(i)(V). In April 2008, HUD exempted HANO from Louisiana’s civil service rules. The plaintiffs say this action was arbitrary and capricious, in violation of the Administrative Procedure Act, but the undisputed facts do not support this view. HUD’s action was based on a memorandum that outlined various impediments to HANO’s mission, focusing especially on compensation limits that kept HANO from hiring the employees it needed, such as project managers to rebuild housing stock depleted by Hurricane Katrina, and substantial administrative burdens involved in both retaining necessary employees and terminating low-performing or unneeded employees. This memorandum suffices to pass the deferential standard of review for agency action. Turning to LCSC, once HUD properly exempted HANO from Louisiana’s civil service laws, LCSC could no longer enforce those laws. Even assuming LCSC had a duty to try to convince HUD to change its decision to exempt HANO, the plaintiffs point to no evidence that such efforts would have succeeded.

McGowan, 388 Fed.Appx. at 433-35.

As noted at the outset, Ms. McGowan, a former public employee, is asserting a free speech retaliation claim against her former public employer, |nHANQ. Public employees’ free speech retaliation claims against their public employers present a sequential five-step series of questions:

(i) whether the plaintiff spoke on a matter of public concern;
(ii) whether the plaintiff spoke as a private citizen or public employee;
(iii) whether the plaintiffs protected speech was a substantial or motivating factor in the adverse employment action;
(iv) whether the state had an adequate justification for treating the employee differently from other members of the general public; and
(v) whether the state would have taken the adverse employment action even absent the protected speech.

Desrochers v. City of San Bernardino, 572 F.3d 703, 708-09 (9th Cir.2009) (quoting Eng v. Cooley, 552 F.3d 1062, 1070 (9th Cir.2009)). Because the trial court concluded that Ms. McGowan’s speech — the 2008 Suit — did not touch on a matter of public concern, it ended its analysis at step one. Because we find no error in the trial court’s finding that Ms. McGowan failed to establish that her speech touched on a matter of public concern, we likewise end our analysis at step one. See Click v. Copeland, 970 F.2d 106, 111 (5th Cir.1992) (noting that “[i]f the conduct does not touch a matter of public concern, the inquiry is at an end and a court will not scrutinize the reasons motivating the employer’s action.”)

The sole issue presented to the trial court, and to this court on appeal, is the legal one of whether Ms. McGowan’s speech addressed a matter of public concern. See Salge v. Edna Independent School Dist., 411 F.3d 178, 184 (5th Cir.2005) 112(stating that “[w]hether the speech at issue is on a matter of public concern is a question of law that must be determined by the court.”) Public employees have the burden of proving that their speech addressed a matter of public concern. Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). The jurisprudence regarding the public concern requirement reflects that the “[ajnalysis of public concern is not an exact science.” Weeks v. Bayer, 246 F.3d 1231, 1234-35 (9th Cir.2001). Nonetheless, several guiding principles can be gleaned from the jurisprudence:

• Topics of public concern are those “relating to any matter of political, social, or other concern to the community.” Connick, 461 U.S. at 146 [103 S.Ct. 1684], “[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” City of San Diego, Cal. v. Roe, 543 U.S. 77, 83-84 [125 S.Ct. 521, 160 L.Ed.2d 410] (2004).
• The pivotal issue to be decided is whether the speech at issue addresses matters of “public” as opposed to “private” interest. Desrochers, 572 F.3d at 709 (citing Connick, 461 U.S. at 147 [103 S.Ct. 1684]). The public versus private distinction reflects “the common-sense realization that government offices could not function if every employment decision became a constitutional matter.” Ballard v. Blount, 581 F.Supp. 160, 163 (N.D.Ga.1983).
• In addressing the public concern issue, the jurisprudence has employed, often conjunctively, two Connick-derived tests: (i) the content-form-context test; and (ii) the citizen-employee test. Kennedy v. Tangipahoa Parish Li brary Bd. of Control, 224 F.3d 359, 366 (5th Cir.2000), abrogated on other grounds by Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir.2007). Generally, the two tests lead to the same result. See Jingping Xu v. University of Texas MD Anderson Cancer Center, 854 F.Supp.2d 430, 436-37 (S.D.Tex.2012) (noting that “the question of whether an employee was speaking as a ‘citizen’ or as an ‘employee’ under the citizen-employee test is sufficiently covered by the content and context prongs of the content-form-context test.”)
• Under the first test, the court looks to the content, form, and context of the speech, as revealed by the whole record. Connick, 461 U.S. at 147-48 [103 S.Ct. 1684]. In other words, “the content, form and context must be considered as a whole package, and the significance of these factors will differ depending on the circumstances of the particular situation.” Moore v. City of Kilgore, Tex., 877 F.2d 364, 370 (5th Cir.1989).
• The second test is based on the statement in Connick that “when a public employee speaks not as a citizen upon matters of public concern, but instead | isas an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.” 461 U.S. at 146-47 [103 S.Ct. 1684]. Under the second test, the court decides whether the employee spoke primarily in his role as a citizen — and thus the speech is protected — or as an employee — and thus the speech is unprotected.
• The citizen-employee test focuses on “the hat worn by the employee when speaking,” meaning the extent to which the employee spoke as a citizen or an employee, rather than upon the inherent interest or importance of the matters discussed by the employee. Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th Cir.1993). “This focus on the hat worn by the employee when speaking rather than upon the ‘importance’ of the issue reflects the reality that at some level of generality almost all speech of state employees is of public concern.” Id.; Morgan v. Ford, 6 F.3d 750, 755 (11th Cir.1993) (noting that as a practical matter, “[a]n employee’s speech will rarely be entirely private or entirely public”).
• “The citizen-employee test can yield indeterminate results because ‘[t]he existence of an element of personal interest on the part of an employee in the speech does not prevent finding that the speech as a whole raises issues of public concern.’ ” Kennedy, 224 F.3d at 366 (quoting Dodds [v. Childers], 933 F.2d [271] at 273 [ (5th Cir.1991) ]). However, “an employee cannot transform a personal conflict into an issue of public concern simply by arguing that individual concerns might have been of interest to the public under different circumstances.” Dodds, 933 F.2d at 273; see also Teague v. City of Flower Mound, Tex., 179 F.3d 377, 382 (5th Cir.1999) (“[t]he mere insertion of a scintilla of speech regarding a matter of public concern would make a federal case out of a wholly private matter fueled by private, non-public interests.”). “Thus, ‘[i]n cases involving mixed speech lie., both public and private], we are bound to consider the Connick factors of content, context, and form, and determine whether the speech is public or private based on these factors.’ ” Kennedy, supra (quoting Teague, 179 F.3d at 382). Mixed speech is protected by the. First Amendment “as long as it was made ‘predominantly’ as a citizen.” Dodds, 933 F.2d at 273.
• The Fifth Circuit has recognized “three reliable principles,” derived from-its mixed speech precedent, for determining whether public employee speech is made as a citizen on a matter of public concern: “First, the content of the speech may relate to the public concern if it does not involve 'solely personal matters or strictly a discussion of management policies that is only interesting to the public by virtue of the manager’s status as an arm of the government. If releasing the speech to the public would inform the populace of more than the fact of an employee’s employment grievance, the content of the speech may be public in nature. Second, speech need not be made to the public, but it may relate to the public concern if it is made against the backdrop of public debate. And third, the speech cannot be made in | furtherance of a personal employer-employee dispute if it is to relate to the public concern.” Kennedy, 224 F.3d at 372.
• The jurisprudence has recognized that “[i]n a close case, when the subject matter of a statement is only marginally related to issues of public concern, the fact that it was made because of a grudge or other private interest or to co-workers rather than to the press may lead the court to conclude that the statement does not substantially involve a matter of public concern.” Johnson v. Multnomah County, Or., 48 F.3d 420, 425 (9th Cir.1995).

With the above principles in mind, we turn to the issue presented on this appeal of whether Ms. McGowan’s asserted speech addressed a matter of public concern.

The gist of Ms. McGowan’s argument is that issues relating to a violation of the Louisiana Constitution are always a matter of public concern. She contends that the 2008 Suit raises such a state constitutional issue. In support, she notes that since 1921 (when the Louisiana Constitution of 1921 was adopted), all PHA employees have been state classified civil servants. She further notes that since 1937 (when HANO was created), HANO employees likewise have been state classified civil servants. She still further notes that the express language of-the Louisiana Constitution guarantees civil service status and due process rights to PHA employees. Based on their status, state classified civil servants have a constitutionally vested right that they cannot be deprived of without due process. Plaisance v. City of Lafayette, 94-1178 (La.App.3d Cir.3/1/95), 651 So.2d 414. Given the constitutionally protected nature of PHA employees’ civil servant status, Ms. McGowan characterizes HUD’s 2008 Determination as a “draconian measure” that drastically changed the way HANO operates — converted the status of HANO’s employees from civil servants to at-will employees. For these reasons, she contends that the she was addressing a matter of public concern in filing suit questioning the propriety of the Secretary of HUD’s decision to remove HANO’s employees from the classified civil service and questioning the. discrimination | ^within HANO itself. She also submits that, contrary to HANO’s suggestion, HUD’s 2008 Determination affected not only HANO employees, but also PHA employees statewide.

Ms. McGowan acknowledges, as HANO contends, that the federal complaint underlying the 2008 Suit alleges adverse employment action, which is a private concern. Nonetheless, she contends that the crux of the 2008 Suit was the evisceration of rights guaranteed by the state constitution, which is a public concern. She thus characterizes this case as a mixed speech case. She cites jurisprudence for the propositions that “only a portion of a communication need address a matter of public concern,” and that “the presence of a personal motivation for an employee’s speech, although certainly a factor in the public-concern analysis, need not destroy the character of a communication as one of public concern.” Brawner v. Richardson, 855 F.2d 187, 192 (5th Cir.1988); O’Donnell v. Barry, 148 F.3d 1126, 1134 (C.A.D.C.1998).

HANO counters that Ms. McGowan’s asserted speech — the 2008 Suit — relates solely to an internal, personnel matter that affects only the employees within the agency (HANO) and thus does not involve a matter of public concern. According to HANO, the 2008 Suit was simply a legal challenge to HUD’s determination to remove certain HANO employees from the civil service system, which merely changed employment conditions for certain HANO employees. HANO further counters that a review of the federal complaint underlying the 2008 Suit reveals that no constitutional violation — neither due process nor vested rights — was asserted. HANO still further contends that Ms. McGowan cannot transform the allegations of her prior complaint through arguments of counsel.

|1fiWe first address Ms. McGowan’s contention that this case can be characterized as a mixed speech case. In support of her contention that her speech involves primarily (or at least in part) a matter of public concern, she cites her allegation of a constitutional violation as a result of HUD’s 2008 Determination and her allegation of HANO’s discrimination. We find her characterization of this case as a mixed speech case unpersuasive for two reasons.

First, as HANO points out, the underlying federal complaint (summarized above) is devoid of any allegation of a constitutional violation. Attempts to construe asserted protected speech differently from its plain language and “post hoc characterizations” of speech have been rejected. Desrochers v. City of San Bernardino, 572 F.3d 703, 711-12 (9th Cir.2009) (citing Roe v. City and County of San Francisco, 109 F.3d 578, 585-86 (9th Cir.1997)). Rather, the jurisprudence has required that courts “look to what the employees actually said, not what they say they said after the fact.” Id. The federal complaint underlying the 2008 Suit, as the federal district court noted, alleges that the McGowan Petitioners “lost their job security” and that they “wish[ed] to remain under the protections of the state civil service system.” The 2008 Suit thus did not allege a constitutional violation — an arguable public concern — but rather alleged an employment dispute — a clearly private concern.

Second, although discrimination claims can under certain circumstances be a matter of public concern, the conclusory allegation of discrimination set forth in the underlying federal complaint — that “[HUD] has permitted [HANO] ... to engage in employment discrimination against its employees, which violated local, state and federal employment laws” — is insufficient to elevate the speech to a matter of public concern. “ <[P]assing’ or ‘fleeting' references to an arguably 117public matter do not elevate the speech to a matter of ‘public concern’ where the ‘focus’ or ‘point’ of the speech advances only a private interest.” Farhat v. Jopke, 370 F.3d 580, 592-93 (6th Cir.2004).

Even assuming, arguendo, this case could be characterized as a mixed speech case, Ms. McGowan’s claim would nonetheless fail. Her asserted protected speech would not pass the Connick “content-form-context” test, which courts apply to determine whether speech is predominately public or predominately private. See Teague, 179 F.3d at 382, n. 4. Briefly, we review each of the three Connick factors.

(i) content

As to content, the jurisprudence is well-settled that speech regarding the topic of employment disputes — employment grievances, personnel disputes, and working conditions — generally does not involve a matter of public concern. See Connick, supra. As a commentator explains, “[b]y separating employment disputes from other expressions, the cases teach that, when it comes to job-related grievances, ‘government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.’ ” 65 Randy J. Ko-zel, FREE SPEECH AND PARITY: A THEORY |„,OF PUBLIC EMPLOYEE RIGHTS, 53 Wm. & Mary L.Rev.1985, 1997-98 (2012).

Attempting to distinguish this ease from the employment disputes line of jurisprudence, Ms. McGowan contends that, contrary to HUD’s contention, the 2008 Suit did not involve a private concern regarding employment conditions — wages, hours, and working conditions — but instead involved a public concern regarding employment status — constitutionally protected civil servant status. Employment conditions and employment status are overlapping concepts that both fall within the ambit of employment disputes. Regardless, as discussed above, the federal complaint underlying the 2008 Suit is devoid of any allegation of a constitutional violation. The content of the speech set forth in that complaint does not involve a public concern; rather, it involves an employment dispute, which is a private concern.

(ii) form

As to form, this ease involves a public form of speech — a lawsuit. However, “the fact that a public employee chooses a public forum in which to state his essentially private concerns does not convert the private grievance into a matter of public concern.” Grace v. Board of Trustees for State Colleges and Universities, 805 F.Supp. 390, 393 (M.D.La.1992). The mere filing of a lawsuit does not automatically constitute protected speech; rather, courts are required “to examine the language in the Complaint to determine whether it implicates any matters of public concern.” Heusser v. Hale, 777 F.Supp.2d 366, 378-79 (D.Conn.2011); Pearson v. District of Columbia, 644 F.Supp.2d 23, 44 (D.D.C.2009) (noting that “ ‘not every lawsuit, just by virtue of its existence, presents a matter of public concern.’ ”). The content and context of the 2008 Suit, as discussed above and |1sbelow, establish that the asserted speech — the 2008 Suit— did not implicate a public concern.

(iii) context

Turning to context, this factor relates to whether the comments were made against a backdrop of widespread debate in the community. Desrochers, 572 F.3d at 715. The context of the speech — the point of the speech — asks “why did the employee speak (as best as we can tell)? Does the speech ‘seek to bring to light actual or potential wrongdoing or breach of public trust,’ or is it animated instead by ‘dissatisfaction’ with one’s employment situation?” Id. “The question of whether the speech was made to ‘further some purely private interest’ is relevant to that inquiry ... as is a determination of whether the speech was made in the context of a workplace ‘power struggle.’ ” Id. (internal citations omitted).

In support of her argument that the context factor supports a finding of public concern, Ms. McGowan states in her appellate brief the following:

There has been great debate recently, not just locally, but nationally, also, concerning the evisceration of the rights of public employees. The interest of the public in this issue is best illustrated by the recall elections occurring nationwide, e.g., Wisconsin, seeking the recall of elected officials who have pushed and/or signed legislation stripping public employees of the same rights which were taken from HANO’s classified civil servants.

Contrary to Ms. McGowan’s contentions, the context in which the 2008 Suit was filed does not support a finding that it raises a matter of public concern.

As HANO contends, the plain language of the 2008 Suit reveals that the McGowan Petitioners “were acting primarily as employees rather than citizens.... [They] spoke primarily as disgruntled employees pushing their personal grievances rather than informed citizens seeking to improve [New Orleans low income housing or HANO] in general.” Grace v. Board of Trustees for State Colleges and Universities, 805 F.Supp. 390, 393 (M.D.La.1992). There is no indication that Ms. McGowan intended by filing the 2008 Suit to advance a political or social point of view beyond the context of her HANO employment status. Indeed, the federal suit was one of several that she filed in an attempt to regain job security at HANO in the aftermath of Hurricane Katrina. When, as here, an employee’s speech is precipitated by adverse employment actions, it is not on a topic of public concern. See Desrochers, supra.

As discussed, the 2008 Suit was a challenge to the Secretary of HUD’s discretionary determination to remove HANO employees from state civil service protection. Both the federal district court and the Fifth Circuit Court of Appeals found HUD’s decision was legally authorized. See also Garcia v. Housing Authority of New Orleans, 09-1058 (La.App. 1 Cir. 12/23/09) (unpub.) (stating that “[HUD] Secretary Jackson’s decision to exempt HANO from state civil service is specifically authorized by 42 U.S.C. § 1437d(j)(3)(A)(iv).”) Although Ms. McGowan suggests that HUD’s determination had ramifications outside the context of the agency (HANO) itself and that it affected all PHA employees, this argument is unpersuasive. HUD’s authority to make this determination was based on a federal statute that only applies to a PHA in “substantial default” and under HUD’s control; HUD’s authority did not extend to all PHAs in the state.

Our finding that the 2008 Suit did not involve a matter of public concern is buttressed by the holding in Ballard v. Blount, 581 F.Supp. 160, 164-65 (D.C.Ga.1983), that an administrative decision to grant or deny tenure does not |¾1 involve a public concern. In Ballard, supra, the court rejected the argument that the administrative decision on tenure involved a public concern because it would have an eventual or derivative impact on the public university’s students. The court reasoned that “[tjaken to its logical conclusion, the plaintiffs argument means that any time a person’s speech will have an effect on the public, regardless of how small or unlikely that effect may be, that speech relates to a matter of public concern. This was a specific concern of the Connick Court, and the Court wisely rejected this identical argument.” Id. at 164. The court in Ballard thus concluded that “absent unusual circumstances an administrative decision to grant or deny tenure to an individual is not a matter of public concern, and an individual challenging this administrative decision is without First Amendment protection.” Id. at 164-65. By analogy, we find, as in Ballard, supra, that the 2008 Suit challenging the administrative, discretionary decision of the Secretary of HUD to remove HANO employees from civil service protection is not a matter of public concern.

Based on our de novo review, we conclude that the trial court, as a matter of law, did not err in finding Ms. McGowan’s asserted speech did not involve a matter of public concern.

DECREE

For the forgoing reasons, the judgment of the trial court is affirmed.

AFFIRMED

      . La. Const. Art. 1, § 7 states: "No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom.” Although Ms. McGowan also alleged that HANO violated her constitutional right of access to courts (La. Const, art. 1, § 22) and the Louisiana Whistleblower statute (La. R.S. 23:967), she voluntarily dismissed these other claims in the trial court.

      . As noted elsewhere, in August 2007, Ms. McGowan filed suit in Civil District Court seeking back pay retroactive to November 2005, when she claimed she should have been called back to work after the hurricane. HANO settled this claim.

      . The pertinent provision of the Housing Act is 42 U.S.C. § 1437d (J)(3), which provides:
      (D)(i) If, pursuant to subparagraph (A)(iv), the Secretary takes possession of all or part of the public housing agency, including all or part of any project or program of the agency, the Secretary
      (I) may abrogate any contract to which the United States or an agency of the United States is not a party that, in the written determination of the Secretary (which shall include the basis for such determination), substantially impedes correction of the substantial default, but only after the Secretary determines that reasonable efforts to renegotiate such contract have failed;
      (II) may demolish and dispose of all or part of the assets of the public housing agency (including all or part of any project of the agency) in accordance with section 1437p of this title, including disposition by transfer of properties to resident-supported nonprofit entities;
      (III) may seek the establishment, as permitted by applicable State and local law, of 1 or more new public housing agencies;
      (IV) may seek consolidation of all or part of the agency (including all or part of any project or program of the agency), as permitted by applicable State and local laws, into other well-managed public housing agencies with the consent of such well-managed agencies;
      (V) shall not be required to comply with any State or local law relating to civil service requirements, employee rights (except civil rights), procurement, or financial or administrative controls that, in the Secretary’s written determination (which shall include the basis for such determination), substantially impedes correction of the substantial default; and
      (VI) shall, without any action by a district court of the United States, have such additional authority as a district court of the United States would have the authority to confer upon a receiver to achieve the purposes of the receivership.

      . The civil service rules that were carved out as exceptions — to which HANO employees remains subject — are Rules 14(a), (b), (c), (d), (e), (f), (g), (j), (k), (Z), and (m). These rules prohibit the following: employment discrimination based upon political or religious affiliations, race, sex, or organizational membership; payment or promise of payment of assessment, subscription, or contribution for political party, faction, or candidate; giving or receiving anything of value for a civil service position; political coercion; political activity (support of certain political issues shall not constitute prohibited political activity); and appointment of an elécted official to a civil service position. Garcia v. Housing Authority of New Orleans, 09-1058 (La.App. 1 Cir. 12/23/09) (unpub.)

      . We note, however, that "[s]ome courts have held that a motion for summary judgment may not be used to dispose of a matter on a ground which ordinarily should be raised by another procedural device, such as a peremptory exception urging prescription or no cause of action, although such rulings probably are contrary to the Code’s theme of liberality of pleadings.” Frank L. Maraist and Harry T. Lemmon, 1 LA. CIV. L. TREATISE, CIVIL PROCEDURE § 6:8 (2d ed.2012). We further note that at least one Louisiana appellate court has held that "the introduction of records of prior suits is clearly evidence and improper at a hearing on no cause of action.” Ustica Enterprises, Inc. v. Costello, 434 So.2d 137, 139 (La.App. 5th Cir.1983). The federal courts, however, have held that taking judicial notice of public documents, such as a court record, does not convert a motion to dismiss to a motion for summary judgment. Pearson v. District of Columbia, 644 F.Supp.2d 23, 45 (D.D.C.2009) (citing Munoz v. Bd. Of Trustees, 590 F.Supp.2d 21, 25 n. 3 (D.D.C.2008)). Given the trial court not only granted HANO’s peremptory exception of no cause of action, but also granted its motion for summary judgment, we find it unnecessary to address these procedural issues.

      . As we noted in Friel v. Louisiana Citizens Property Ins. Corp., 2011-1032, pp. 4-5 (La. App. 4 Cir. 2/8/12), 85 So.3d 180, 183:
      "The function of the peremptoiy exception of no cause of action is to question whether the law extends a remedy to anyone under the factual allegations of the petition. Fink v. Bryant, 01-0987, p. 3 (La.11/28/01), 801 So.2d 346, 348. The peremptory exception of no cause of action is designed to test the legal sufficiency of the petition by determining whether the plaintiff is afforded a remedy in law based on the facts alleged in the pleading. Id., pp. 348-349. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. Id. The exception is triable on the face of the papers and for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Id. Because the exception raises a question of law and the trial court’s decision is based only on the sufficiency of the petition, the appellate court reviewing the judgment should subject the case to a de novo review. Id."

        Id. (quoting Becnel v. Grodner, 07-1041 (La.App. 4 Cir. 4/2/08), 982 So.2d 891, 894).

      . As we noted in Johnson v. Loyola University of New Orleans, 11-1785, pp. 7-8 (La.App. 4 Cir. 8/8/12), 98 So.3d 918, 923-24, the standard of review of a trial court’s ruling granting a motion for summary judgment, pursuant to La. C.C.P. arts. 966 and 967 and the jurisprudence, is as follows:
      Appellate courts review the grant or denial of a motion for summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. This standard of review requires the appellate court to look at the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, to determine if they show that no genuine issue as to a material fact exists, and that the mover is entitled to judgment as a matter of law. A fact is material when its existence or nonexistence may be essential to the plaintiff's cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, no need for trial on that issue exists and summary judgment is appropriate. To affirm a summary judgment, we must find 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.
      The summary judgment procedure is designed to secure the just, speedy and inexpensive determination of actions. Summary judgments are favored, and the summary judgment procedure shall be construed to accomplish these ends. The code provides that where [as in the instant case] the party moving for summary judgment will not bear the burden of proof at trial, their burden does not require them to negate all essential elements of the adverse party's claim, but rather to point out to the court that an absence of factual support exists for one or more elements essential to the adverse party’s claim. Thereafter, if the adverse party fails to produce factual support sufficient to establish that it will be able to satisfy its evidentiary burden of proof at trial, no genuine issue of material fact exists, and the movant is entitled to judgment as a matter of law. The adverse party cannot rest on the mere allegations or denials of his pleadings when a motion for summary judgment is made and supported by affidavits, but is required to present evidence establishing that material facts are still at issue.

        Id.

      . The jurisprudence has recognized that "[t]he Louisiana constitution guarantees the same liberties granted by the First Amendment, and is designed to serve the same purpose and provide at least coextensive protection.” Chicago Tribune Co. v. Mauffray, 08-522, p. 8 (La.App. 3 Cir. 11/5/08), 996 So.2d 1273, 1279 (citing State v. Franzone, 384 So.2d 409, 411 (La.1980)). Thus, in addressing Ms. McGowan’s claim that her right to freedom of expression under the Louisiana Constitution was violated we look to the jurisprudence addressing the parallel section of the federal constitution, the First Amendment. See Burkart v. New Orleans Police Dep’t, 03-1699 (La.App. 4 Cir. 3/31/04), 871 So.2d 1229 (citing First Amendment jurisprudence).

      . We thus do not address the other four questions in the series. Nor do we address HANO's alternate contention that summary judgment was appropriate because Ms. McGowan failed to offer colorable evidence linking HANO’s decision to dismiss her in June 2010 to the 2008 Suit against HUD and the Commission.

      . See Desrochers v. City of San Bernardino, 572 F.3d 703, 711 (9th Cir.2009) (rejecting claim that “a simple reference to government functioning automatically qualifies as speech on a matter of public concern” and noting that "the fact that speech contains ' “passing references to public safety[,] incidental to the message conveyed” weighs against a finding of public concern.’ Robinson v. York, 566 F.3d 817, 823 (9th Cir.2009)”); see also Heusser v. Hale, 777 F.Supp.2d 366, 381 (D.Conn.2011) (characterizing allegations as ''entirely conclusory” and noting the lack of any "specific or well-pleaded factual allegations regarding a practice or history of discriminatory treatment of the other individuals or entities.”).

      . See also Marceaux v. Lafayette City-Parish Consol. Government, 921 F.Supp.2d 605, 635 (W.D.La.2013), 2013 WL 395844, pp. 15-16 (noting that “[a]n employee's complaints about his job or working conditions, as well as speech pertaining to internal personnel disputes are strictly personal and are not protected under the First Amendment”); Branton v. City of Dallas, 272 F.3d 730, 739 (5th Cir.2001) (speech by an employee pertaining to internal personnel disputes and working conditions ordinarily will not involve public concern); see also Mark A. Rothstein, Charles B. Craver, Elinor P. Schroeder, Elaine W. Shoben, 1 Employment Law § 5.10 (4th ed.2012) (noting that "mundane employment grievances relating primarily to the individual employee ... including] individual job evaluations, complaints about individual working conditions, and employer grooming requirements” are not matters of public concern).

      . Ms. McGowan contends that the fact HUD prevailed in the 2008 Suit is not relevant to the issue of whether the speech involves a matter of public concern. In support, she cites Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995), for the proposition that "favorable termination is not a requisite of a retaliatory interference claim.” Contrary to her contention, we find the rulings of the federal district and appellate courts dismissing the 2008 Suit are relevant in this case for the purpose of establishing the context in which that suit arose — a legal dispute over the authority of the Secretary of HUD to remove HANO employees from state civil service protection.