Louisiana’s AG has publicly criticized a whistleblower. Will it cost the state money?

Louisiana Attorney General Jeff Landry is publicly criticizing the professionalism and character of a former employee who raised concerns about sexual harassment within Landry’s department — a strategy which some employment law experts said is financially risky for the state’s taxpayers.

“It’s a strategic decision [to criticize a whistleblower publicly], but it is a bit precarious,” said Bill Corbett, an LSU law professor who specializes in employment discrimination, in an interview this week. 

Former assistant attorney general Matthew Derbes has outed himself as the employee who complained that Landry’s former criminal division director, Pat Magee, was mistreating women in the office. Derbes considers himself a whistleblower and resigned from his job at the Louisiana Department of Justice Monday.

On top of the original sexual harassment allegations, Derbes is also now accusing Landry’s office of misusing state funds and going easy on a politically-connected person facing charges for child pornography. He included these new allegations in his resignation letter submitted to Landry Monday. 

Landry’s office has released a variety of critical statements about Derbes over the last week, but without ever mentioning Derbes by name. The attorney general held a press conference the day after Derbes handed over that resignation letter, in part to go into great detail about the potential misconduct and alleged unprofessional behavior of a “high level member of the criminal division.” Landry’s description of this  problematic person at the press conference — which was carried live over Facebook — matched that of Derbes. 

“There is no mistaking who he is talking about. None,” said Jill Craft, Derbes’ lawyer. 

Specifically, Landry said the “high level member of the criminal division” — presumed to be Derbes — had made problematic comments about women in the office via text message. He also said this person had failed to report potential misconduct matters — such as sexual misconduct allegations — in a timely manner. He added that Derbes had impersonated a high-ranking woman official for a previous governor over social media years ago.  

“You can imagine how shocked I was to find that out,” Landry said. 

Craft said the social media issue regarding the other state employee was being blown out of proportion and was resolved several years ago. She also pushed back against the other allegations, especially that Derbes has not reported his concerns over sexual misconduct in Landry’s office in a reasonable time frame. 

“It is a sad day when the chief law enforcement officer in this state decides that instead of addressing the significant problems of sexual harassment in the workplace, he will attack the person who stands up against it,” Craft said. 

Landry has been upset for months about the public scrutiny over sexual misconduct allegations against Magee, Landry’s longtime friend. While he has acknowledged that Magee acted inappropriately, Landry has refused to characterize Magee’s behavior — which included commenting on people’s appearances — as sexual harassment. 

A lawsuit alleging retaliation and loss of employment from Derbes seems imminent. Craft characterized Landry’s public criticism of Derbes as part of a wider strategy of retaliation for raising sexual harassment allegations in Landry’s office. Landry stripped Derbes of responsibilities that had been a part of his job as deputy director of the criminal division for years and denied Derbes a promotion after he complained about  misconduct, Craft said.

But the question is whether Landry’s public criticism about Derbes — even if he is never identified by name — could legally be considered retaliation, which employers are not allowed to do to whistleblowers. If Derbes wins a lawsuit against the state — or settles out of court — the payout he received would be funded with state tax dollars.

Corbett, the LSU professor,  said Landry’s public criticism of Derbes could increase his potential settlement or compensation from the state, especially if Derbes can make the case that he was retaliated against in other ways.

“A former employee can have a claim of retaliation because you are hurting them going forward,” Corbett said.  “If you have statements that are derogatory, it may interfere with their ability to get another job.”

But Joel Wm. Friedman, of Tulane Law School, said he didn’t think Landry’s public statements about Derbes would necessarily rise to the level of retaliation under the law — even if Derbes is classified as a whistleblower.

“You’re entitled to be protected if you are a whistleblower, but protected from what? Not from people saying bad things about you,” Friedman said in an interview. “The AG, just like anybody else, has free speech.”

Friedman said any case that hinges on retaliation against Derbes will have to focus on whether he was forced out of his job, rather than whether Landry made critical comments about him publicly. He said Derbes will have a harder time proving that his initial complaints about sexual misconduct cost him his position, since Derbes resigned and wasn’t fired. He said it  is harder to prove an employee was retaliated against when they are “forced from their job” — as opposed to being terminated.

“I didn’t say it was impossible, and I didn’t say people haven’t done it,” Friedman said. “It’s just not a simple thing to prove.”

Glenn MacGovern, an employment law attorney in Metairie, agreed with Friedman.

“He can’t sue for wrongful termination because he resigned. That’s a problem,” MacGovern said in an interview. “His damages would be greater if he stayed on.”

But MacGovern said that juries are also easily angered by retaliation against a person who complains about sexual harassment in the workplace. He said it is much easier to convince juries that retaliation took place than the actual act of sexual harassment.  

“If they are reporting an illegal act, then they are heroes,” he said. “You have a 98 percent chance of success with a jury then.”

He said the potential risk of going in front of a jury with a credible retaliation case would also increase the amount of money the state ultimately ends up paying Derbes, because Derbes could leverage the concern over the outcome of a jury trial against the state.