Christian Cutler v. Stephen F. Austin State Univ

Case: 13-40685 Document: 00512769309 Page: 1 Date Filed: 09/15/2014

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

No. 13-40685 FILED
September 15, 2014
Lyle W. Cayce
CHRISTIAN CUTLER, Clerk

Plaintiff–Appellee
v.

STEPHEN F. AUSTIN STATE UNIVERSITY; BAKER PATTILLO, President
of Stephen F. Austin University; RICHARD BERRY, Vice President of
Stephen F. Austin; A. C. HIMES, Dean of Fine Arts at Stephen F. Austin
University; SCOTT ROBINSON,

Defendants–Appellants

Appeal from the United States District Court
for the Eastern District of Texas

Before DENNIS and PRADO, Circuit Judges, and BROWN, District Judge. ∗
EDWARD C. PRADO, Circuit Judge:
Plaintiff–Appellee Christian Cutler (“Cutler”) sued Defendants–
Appellants (“Defendants”), university officials at Stephen F. Austin State
University (the “University”), under 42 U.S.C. § 1983 alleging he was fired in
retaliation for the exercise of protected speech in violation of the First
Amendment. Specifically, Cutler alleges he was fired from his position as
Director of the University’s art galleries after he told a member of U.S.
Representative Louie Gohmert’s staff that he believed Rep. Gohmert was a

∗
District Judge of the Eastern District of Louisiana, sitting by designation.
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No. 13-40685
“fear monger.” The central dispute in the case is whether Cutler was speaking
as a citizen on a matter of public concern within the protection of the First
Amendment or pursuant to official duties. Defendants appeal the district
court’s denial of summary judgment on qualified immunity grounds. We
affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2007, Christian Cutler became Director of Art Galleries at Stephen F.
Austin State University, a public university located in Nacogdoches, Texas.
See Tex. Educ. Code § 101.01(a). The job required Cutler to “oversee[] the
planning and execution of exhibition and other programs that support the
mission of the School of Art, the University, and the larger East Texas arts
community.” The job’s particular responsibilities included “maintain[ing] good
public relations, including working with community support groups, as well as
coordinating special events with other arts and cultural groups in the area”;
“[s]erv[ing] as liaison between the University and the larger arts community”;
and “[p]lan[ning] and mak[ing] arrangements for [the] annual calendar of
exhibitions.”
According to Cutler, sometime in 2010, a member of Representative
Louie Gohmert’s staff called Cutler to invite him to “jury”—that is, curate and
judge—a high school art exhibition and contest in Tyler, Texas, hosted by the
representative. Cutler recalls the conversation being “very vague” and recalls
asking the staff member to send him more information, which the staff member
agreed to do. When Cutler did not hear from Rep. Gohmert’s office, he
researched Rep. Gohmert on the Internet to learn more about him. Cutler
formed a negative impression of Rep. Gohmert after reading his widely

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publicized statements 1 and concluded that he would decline Rep. Gohmert’s
offer when he next spoke to the staff member. According to Cutler, in early
September 2010, following an exchange of phone messages with members of
Rep. Gohmert’s staff, Cutler again spoke with Rep. Gohmert’s staff to say he
was no longer interested in jurying Rep. Gohmert’s art show. In the course of
explaining his rejection, Cutler explained his impression that Rep. Gohmert
was a fear monger with whom Cutler did not want to be associated.
Citing deposition testimony from Cutler and Rep. Gohmert’s staff
member, the Defendants maintain that the staff member called Cutler to
express Rep. Gohmert’s interest in hosting the contest at the University. The
Defendants further contend that Cutler was made aware of this invitation to
host a competition, not to jury one, in his second conversation with Rep.
Gohmert’s staff member.
On September 20, 2010, Cutler received a letter from Rep. Gohmert in
response to the rejection, copying University President Dr. Baker Pattillo
(“Pattillo”). In the letter, Rep. Gohmert expressed disappointment that Cutler
would “not host the Congressional High School Art Competition this fall
because you did not ‘want to be involved in any way’ with me,” and informed
Cutler that “[w]e will not bother you in the future” with an invitation to host
the event.
The same day Pattillo received the letter, he instructed University
Provost Dr. Richard Berry (“Berry”) to look into the matter. Berry in turn told

1 These included Rep. Gohmert’s statement on the floor of the House of
Representatives about “terror babies,” in which Rep. Gohmert claimed that a retired FBI
agent had told him the FBI was investigating overseas terrorism cells planning to place
pregnant women in the United States. According to Gohmert, the women were to have a
baby or babies and return back overseas to raise the children, now U.S. citizens, to become
future terrorists, so the children could someday return to “destroy our way of life.” 156 Cong.
Rec. H4867 (daily ed. June 24, 2010) (statement of Rep. Gohmert).
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University Dean of Fine Arts Dr. Addison C. Himes (“Himes”) to get Cutler’s
story. Himes delegated the task to Dr. Scott Robinson (“Robinson”), the
Director of the School of Art Galleries and Cutler’s direct supervisor. That
evening, just hours after Cutler and Pattillo had received Rep. Gohmert’s
letter, Cutler received a call from Robinson, who wanted to discuss the
incident. Robinson took down notes from the call.
The following morning, on September 21, Berry, Himes, and Robinson
met to discuss the call. Robinson recounted his conversation with Cutler and
shared his notes. Berry also reviewed prior reports of Cutler’s conduct. On
September 22, Cutler sent an unsolicited email to Pattillo, Himes, and
Robinson explaining the incident. On September 23, Cutler met with Himes
and then with Berry. Berry then recommended that Pattillo fire Cutler.
Pattillo accepted Berry’s recommendation. On September 27, Himes gave
Cutler a letter of termination from Berry. Cutler was offered the opportunity
to resign and resigned immediately.
On October 14, 2011, Cutler sued Pattillo, Berry, Himes, and Robinson
in federal court under 42 U.S.C. § 1983 alleging retaliation for the exercise of
protected speech in violation of the First Amendment. Following full discovery,
Defendants filed a motion for summary judgment on the merits of Cutler’s
claim and asserting qualified immunity. The district court denied the motion
on both grounds. The district court found that there was a genuine issue of
material fact as to whether Himes and Robinson exerted influence over the
ultimate decision. In response to Defendants’ arguments that an employer’s
decisionmaking should be given some deference following a reasonable
investigation, the district court found a “genuine fact issue as to whether
Defendants conducted a reasonable investigation and, as a consequence,
whether they reasonably found that Cutler was responding” in an official

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No. 13-40685
capacity. The court further found that Cutler had presented sufficient
evidence to create a genuine fact issue as to whether “Cutler or Defendants
reasonably believed that Cutler was responding to a request to jury an art
contest as a private citizen or to host the contest at SFA in his official capacity.”
Finally, the court found that the Defendants were not entitled to summary
judgment on qualified immunity grounds.
The Defendants filed a timely notice of appeal, and the district court
granted the Defendants’ motion to stay trial pending this interlocutory appeal.
II. JURISDICTION
Defendants raise two issues on appeal: whether the district court erred
in denying summary judgment on qualified immunity grounds; and whether
the district court erred in denying summary judgment for Robinson and Himes
on the grounds that those two university officials were not final
decisionmakers whose conduct is covered by § 1983. The parties first contest
whether our court has jurisdiction to hear these claims.
A. Legal Questions on Qualified Immunity Appealable
Although a denial of summary judgment is typically unappealable,
defendants have a limited ability to appeal a denial of qualified immunity
under the collateral order doctrine. We have jurisdiction over denials of
qualified immunity only “to the extent that the district court’s order turns on
an issue of law.” Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010).
This court does “not have jurisdiction to review the genuineness of any
factual disputes but can decide whether the factual disputes are material.” Id.
at 211 n.1. We have “jurisdiction to review the materiality of disputed facts as
well as the district court’s legal analysis as it pertains to qualified immunity.”
Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013). That is, we have
“jurisdiction only to decide whether the district court erred in concluding as a

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matter of law that officials are not entitled to qualified immunity on a given
set of facts.” Kinney v. Weaver, 367 F.3d 337, 347 (5th Cir. 2004) (en banc).
Consequently, in the course of our analysis, we must disentangle those
arguments that raise mere factual disagreements, over which we lack
jurisdiction, from those that raise purely legal questions.
B. Final-Decisionmaker Merits Issue Unappealable
Cutler contends that the Defendants cannot raise their final-
decisionmaker issue as a part of the qualified-immunity appeal because the
Defendants never raised these arguments below. We find it doubtful that the
Defendants waived this argument. But Cutler is nevertheless correct that we
cannot hear Defendants’ fact-dependent final-decisionmaker claim.
The Supreme Court has concluded that the final-decisionmaker question
is a mere defense from liability, not an immunity from suit. See Swint v.
Chambers Cnty. Comm’n, 514 U.S. 35, 43 (1995) (“The commission’s assertion
that Sheriff Morgan is not its policymaker does not rank, under our decisions,
as an immunity from suit. Instead, the plea ranks as a ‘mere defense to
liability.’” (citation omitted)). As a mere defense from liability, the issue cannot
satisfy the collateral order doctrine test. Far from being a separate,
unreviewable, and conclusive order, the district court’s denial of summary
judgment on these grounds is instead “tentative, informal or incomplete.” Id.
at 42 (citing Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546 (1949)).
Any “erroneous ruling on liability may be reviewed effectively on appeal from
final judgment.” Id. at 43.
Moreover, we lack jurisdiction to hear the claim under the doctrine of
pendent appellate jurisdiction. “Pendent appellate jurisdiction may exist
where, in the interest of judicial economy, courts have discretion to review
interlocutory rulings related to independently appealable orders when the two

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are ‘inextricably intertwined.’” Byrum v. Landreth, 566 F.3d 442, 449 (5th Cir.
2009) (citing Swint, 514 U.S. at 43–44, 51). But these claims are not so
inextricably intertwined that the court should exercise pendent appellate
jurisdiction. Himes and Robinson must prove a different set of facts to show
that they are not liable as final decisionmakers than they must prove to show
they enjoy qualified immunity from suit.
Finally, policy considerations do not favor granting pendent appellate
jurisdiction here. Pendent appellate jurisdiction would not serve the interests
of judicial economy, because common factual and legal issues will not
necessarily be resolved by the qualified-immunity appeal. In fact, the court
should be especially wary of granting jurisdiction here for fear of allowing
parties to “parlay . . . collateral orders into multi-issue interlocutory appeal
tickets.” Swint, 514 U.S. at 49–50; see also Jamie S. v. Milwaukee Pub. Sch.,
668 F.3d 481, 492 (7th Cir. 2012) (chiding appellants for using pendent
appellate jurisdiction as a “bootstrapping procedural maneuver”).
III. STANDARD OF REVIEW
Our court does not conduct a typical de novo review for an interlocutory
appeal of a denial of summary judgment on qualified immunity grounds. See
Kinney, 367 F.3d at 348 (explaining that the court does “not apply the standard
of Rule 56”). We “instead consider only whether the district court erred in
assessing the legal significance of the conduct that the district court deemed
sufficiently supported for purposes of summary judgment.” Id. “Where factual
disputes exist in an interlocutory appeal asserting qualified immunity, we
accept the plaintiff[’s] version of the facts as true.” Id. But “[i]n reviewing the
district court’s conclusions concerning the legal consequences—the
materiality—of the facts, our review is of course de novo.” Id. at 349 (citation
omitted).

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IV. DISCUSSION
To overcome an official’s qualified immunity defense, a plaintiff must
show that the evidence, viewed in the light most favorable to him, is sufficient
to establish a genuine dispute “(1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time
of the challenged conduct.” Ashcroft v. al–Kidd, 131 S. Ct. 2074, 2080 (2011);
see also Haverda v. Hays Cnty., 723 F.3d 586, 598 (5th Cir. 2013). We have
discretion to decide which of the two steps of qualified immunity to address
first. Pearson v. Callahan, 555 U.S. 223, 236 (2009). 2
“[T]he First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen addressing matters of public concern.”
Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). To determine whether an
employee’s right has been violated, we first ask a threshold question: Was the
employee’s speech made pursuant to the employee’s duties or as a citizen on a
matter of public concern? See id. at 418 (“The first [step] requires determining
whether the employee spoke as a citizen on a matter of public concern.”); see
also Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (discussing the new
test in light of Garcetti). Second, if the employee was speaking “as a citizen, in

2 Defendants suggest an alternative statement of the two steps, under which we first
determine “whether the plaintiff has alleged a violation of a clearly established constitutional
or statutory right,” and second determine “whether the defendant’s conduct was objectively
reasonable.” Wyatt, 718 F.3d at 502–03 (citing Jones v. City of Jackson, 203 F.3d 875, 879
(5th Cir. 2000)). We reject that suggestion.
Wyatt’s two-prong test at best represents an adequate formulation of the second step
of the qualified immunity test the Supreme Court recently restated in al–Kidd. Even so, this
formulation is awkward to apply. “Clearly established law” is inextricably intertwined with
the concept of “objective reasonableness”: law is clearly established if it puts an objectively
reasonable official on fair warning that his conduct is unlawful. See Kinney, 367 F.3d at 349.
At worst, the Wyatt test ignores each court’s discretion to answer the first step—whether the
plaintiff has made out a violation of a constitutional or statutory right—irrespective of
whether that right is clearly established. See Pearson, 555 U.S. at 236 (noting that
consideration of the first step is “often beneficial,” even where the law is not clearly
established).
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commenting upon matters of public concern,” we balance the employee’s speech
interest with the government employer’s interest “in promoting the efficiency
of the public services it performs.” Lane v. Franks, 134 S. Ct. 2369, 2377 (2014)
(quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968)); see also Juarez v.
Aguilar, 666 F.3d 325, 332 (5th Cir. 2011) (summarizing this second step as a
four-prong test for First Amendment retaliation). 3
The Supreme Court has recognized that in applying this test, a dispute
sometimes arises as to “the factual basis for applying the test,” that is, “what
the speech was, in what tone it was delivered, [and] what the listener’s
reactions were.” Waters v. Churchill, 511 U.S. 661, 668 (1994) (plurality
opinion). 4 Rather than having the judicial factfinder independently resolve
these factual disputes, the Waters Court instructed lower courts to take a
deferential approach: when an employer’s decision rests on a reasonable belief
about the contents of the speech, formed after an objectively reasonable
investigation of the facts to determine what the employee actually said, then
the court should not second-guess the employer’s decision, even if the employer
was wrong and the speech was entitled to protection. Id. at 677–78.
A. Violation of a Constitutional Right
Before the district court, the Defendants conceded that Cutler had
suffered an adverse employment decision and that Cutler’s speech had

3 A First Amendment retaliation claim also must show that the employer took an
adverse employment action and the speech motivated the employer’s conduct. See, e.g.,
Juarez, 666 F.3d at 332. Those elements are not at issue here, and we do not discuss them.
4 Although Justice O’Connor only wrote for a plurality of the Court, as Justice Souter

wrote in a concurring opinion, “the reasonableness test [the opinion] sets out is clearly the
one that lower courts should apply. A majority of the Court agrees that employers whose
conduct survives the plurality’s reasonableness test cannot be held constitutionally liable.”
Id. at 685 (Souter, J., concurring) (citing the plurality opinion and Justice Scalia’s opinion
concurring in the judgment, joined by Justice Kennedy and Justice Thomas).

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motivated their conduct. Defendants also did not raise any arguments
regarding the crucial Pickering balancing test. As a result, the district court
stated that the only issue before it was “whether Cutler spoke as a citizen on a
matter of public concern or as an official pursuant to his duties.” It concluded
that Cutler had presented sufficient evidence to create a genuine factual
dispute on this element.
On appeal, the Defendants effectively abandon any argument that
Cutler has not sufficiently established a genuine dispute whether the
Defendants violated his constitutional right. Therefore, we must assume that
Cutler has alleged a violation of his First Amendment right and proceed to the
second step of the qualified immunity analysis.
B. Clearly Established Law
The Defendants raise two principal challenges to the district court’s
conclusion that Cutler’s right was clearly established such that the Defendants
had fair warning that their conduct was objectively unreasonable. First, the
Defendants contend that, in 2010, the First Amendment right to be free from
retaliation for protected speech was too abstract or general to give them fair
warning that their conduct was objectively unreasonable. Second, the
Defendants argue that it was not clearly established that their investigation
into the content of Cutler’s communications with Rep. Gohmert’s office was
unreasonable and thus entitled to no deference.
For a law to be “clearly established,” the law must so clearly and
unambiguously prohibit an official’s conduct that “every reasonable official
would have understood that what he is doing violates that right.” al-Kidd, 131
S. Ct. at 2083 (internal quotation marks omitted). The court does not need to
have “a case directly on point.” Id. Rather, “existing precedent must have
placed the statutory or constitutional question beyond debate.” Id. (emphasis

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added). What is crucial is that the Defendants had “fair warning.” Hope v.
Pelzer, 536 U.S. 730, 741 (2002).
1. Speech as a Citizen After Garcetti
Neither the parties nor the district court paints an accurate picture of
“the landscape of [Fifth] Circuit precedent” at the time of the Defendants’
actions. Lane, 134 S. Ct. at 2382. The Defendants argue that our holding in
Morgan v. Swanson, 659 F.3d 359 (5th Cir. 2011) (en banc), should apply with
equal force to this case. In Morgan, the en banc court addressed a student’s
First Amendment claim against educators relating to candy canes with
religious references at school—invoking the balance between free speech rights
and the Establishment Clause. See 659 F.3d at 379–82. The court granted the
school officials qualified immunity because
the general state of the law in this area is abstruse, complicated,
and subject to great debate among jurists. At the time of the
incidents in question, neither a single “controlling authority” nor a
“robust consensus of persuasive authority” had held that the First
Amendment prohibits school principals from restricting the
distribution of written religious materials in public elementary
schools.
Id. at 382. Despite reciting the Morgan court’s conclusion, the Defendants do
not explain how the law in the present case presents similar difficulties.
Cutler insists that the district court correctly stated the clearly
established law. Yet, the district court relies on a single case for establishing
a clearly established right. See Cutler v. Pattillo, No. 2:11-CV-00447, 2013 WL
2543059, at *4 (E.D. Tex. June 10, 2013) (“[I]t was clearly established law that
taking adverse-employment action against an employee for political reasons
violates the First Amendment.” (citing Correa v. Fischer, 982 F.2d 931, 933
(5th Cir. 1993))). The district court appears to cite Correa for its holding that
“termination of employees for political reasons is presumptively violative of the

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First Amendment.” 982 F.2d at 933. But Correa dealt with a patronage
dismissal, unlike this case. Correa requires proof of elements unnecessary for
a general First Amendment retaliation claim, namely, that the official conduct
against the employee was taken “for political reasons.” Id. Alternatively,
Cutler proposes that we should look no further than New York Times Co. v.
Sullivan, 376 U.S. 254, 269–71 (1964), for the clearly established law. The
soaring rhetoric and historical sweep of that opinion’s First Amendment
statement run headlong into al-Kidd’s repudiation of overly abstract
articulations of law. See al-Kidd, 131 S. Ct. at 2084.
A better place to start the examination of “clearly established law” is the
First Amendment retaliation standard, as it has been consistently applied
since Garcetti. In Garcetti, a deputy district attorney reported to his supervisor
that there were inaccuracies in an affidavit supporting a search warrant and
recommended that the office refrain from prosecuting the case. See 547 U.S.
at 413–14, 421. The deputy alleged that he was subjected to a series of
retaliatory actions in response to this intra-office speech. Id. at 414. The
Supreme Court concluded that the deputy’s speech was not entitled to First
Amendment protection because it was made pursuant to his official duties,
specifically in fulfillment of his responsibility to advise his supervisor about
how best to proceed with a pending case. Id. at 421–23.
Yet, Garcetti alone may not “clearly establish” Cutler’s First Amendment
right. Garcetti did not “articulate a comprehensive framework for defining the
scope of an employee’s duties in cases where there is room for serious debate.”
Id. at 424. After all, Garcetti “did not explicate what it means to speak
pursuant to one’s official duties, although we do know that a formal job
description is not dispositive . . . [,] nor is speaking on the subject matter of

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one’s employment.” Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 692 (5th
Cir. 2007) (per curiam) (citations and internal quotation marks omitted).
Several pre-2010 decisions have, however, given the Defendants the “fair
warning” they need. This circuit began the task of embroidering Garcetti’s
general rule with new fact patterns in 2007 in Williams. There, the court
considered whether a memorandum sent by a school athletic director to a
school principal about the misuse of athletic funds was official speech. Id. at
689–91. It was undisputed that the director was not required to write
memoranda as part of his regular job duties, but the court nonetheless held
that his speech was made pursuant to his official duties. Id. at 693–94. The
court reasoned that “[a]ctivities undertaken in the course of performing one’s
job are activities pursuant to official duties.” Id at 693. The memorandum
concerned matters immediately within the athletic director’s purview—the use
of funds for the school athletic teams and the related accounting procedures.
Thus, the speech was made as part of his official duties. Id. at 694.
In Davis, the court held that an information systems auditor spoke in
part as a citizen on a matter of public concern when she sent reports to the
EEOC, FBI, and university officials seeking investigation into complaints she
made while working for the University of Texas system. 518 F.3d at 307–18.
Davis worked for the University of Texas Health Science Center in Houston,
and she conducted an audit of university computers and discovered
pornography. Id. at 307–08. Davis approached various administrators to
address the issue, but she considered their response to be inadequate. Id. at
308–09. She sent a complaint letter to her immediate supervisors and to the
Chancellor, in which she noted that she had also filed complaints with the FBI
regarding possible child pornography and the EEOC about workplace
discrimination. Id. at 309, 314. Davis analyzed the issue based on whether

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the speech was directed to internal chains of command or externally and
whether the content of the speech was about job concerns or not. See id. at
313–16. Since Davis’s complaints to the FBI and EEOC were clearly made
outside of the chain of command and her duties as an auditor did not require
that she communicate with law enforcement, the court held that the
complaints constituted citizen speech. Id. at 316.
Similarly, in Charles v. Grief, 522 F.3d 508 (5th Cir. 2008), this court
found that a member of the Texas Lottery Commission spoke as a citizen when
he sent an email to members of the Texas Legislature as well as high-ranking
Lottery Commission officials raising concerns about racial discrimination and
retaliation against him and other minority employees of the Commission. Id.
at 510. There the court considered the fact that the speech “was not made in
the course of performing or fulfilling his job responsibilities, was not even
indirectly related to his job, and was not made to higher-ups in his organization
. . . but was communicated directly to elected representatives of the people.”
Id. at 514.
These cases should have provided Defendants with a clear warning that
terminating Cutler on the basis of his speech to Rep. Gohmert’s office—based
on the undisputed facts and taking all reasonable inferences in Cutler’s favor—
would violate Cutler’s First Amendment right. Assuming that Cutler’s account
of his conversations with Rep. Gohmert’s office is credible, as we must do,
Cutler’s speech was made externally to a staff member of an “elected
representative[] of the people” allegedly about participating in an event that
was not within his job requirements. See id. Cutler spoke about concerns
entirely unrelated to his job and from a perspective that did not depend on his
job as a university employee, but rather emanated from his views as a citizen.
See Williams, 480 F.3d at 693–94. Therefore, reasonable officials in the

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Defendants’ position should have known on the basis of Charles and Davis that
Cutler’s speech was protected as the speech of a citizen and that their decision
to terminate Cutler on the basis of that citizen speech would violate Cutler’s
First Amendment right.
2. Reasonable Investigation Under Waters
Next, the Defendants argue that reasonable officials in their positions
would not have known that, under the circumstances, their investigation was
an unreasonable one. We hold that the law of this circuit clearly established
what a reasonable investigation was such that a reasonable official would have
known that the Defendants’ investigation was unreasonable under the
circumstances.
The district court found that there was a material fact issue as to
whether the investigation was reasonable. The district court found that Cutler
had presented evidence that the Defendants ignored Cutler’s explanations of
the incident and focused inordinately on the University’s relationship with
Rep. Gohmert. The court cited evidence that Berry had directed Himes to fire
Cutler before Cutler had even spoken to Berry, that Himes admitted that he
“could see where [Cutler] would feel that [he was being railroaded]” and
Himes’s admission that though “some sort of investigation” would normally
occur after such an incident, “there wasn’t any investigation [here] per se.”
Taking these facts as true and drawing all reasonable inferences in Cutler’s
favor, the Defendants could not have thought that their informal
decisionmaking over the course of three days was a reasonable investigation to
which our court would accord deference.
What constitutes a reasonable investigation prior to terminating a public
employee for speech that is likely protected is beyond debate in our circuit. In
Salge v. Edna Independent School District, 411 F.3d 178 (5th Cir. 2005), our

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court examined what a minimally adequate investigation had to include. The
court surveyed our precedent applying Waters and concluded that the
employer’s “de minimis” investigation “fell far short of any investigation that
we have ever held to be reasonable.” Id. at 193. The court compared the
circumstances of that case to the investigation in Johnson v. Louisiana, 369
F.3d 826 (5th Cir. 2004), in which our court found that the employers had
conducted a reasonable investigation. Id. (citing Johnson, 369 F.3d at 832–
33). In Johnson, the court relied on the fact that “(1) [the employer] received
statements from three employees, (2) . . . obtained a supervisor’s report stating
that the supervisor believed that the plaintiff was lying, and (3) the plaintiff
‘fail[ed] to present any evidence in his own support even when explicitly invited
to do so.’” Id. (quoting Johnson, 369 F.3d at 832). The court also summarized
the investigation in Waters:
[T]he investigation approved by the Supreme Court comprised the
employer (1) thrice interviewing the employee who originally
complained about Churchill’s speech, (2) questioning another
employee who had witnessed the conversation for corroboration,
and (3) most significantly, conversing with the employee whose
speech was at issue. Although the Court noted that the employer
had not interviewed the plaintiff before telling her that she was
fired, it relied on the fact that, after her discharge, the plaintiff
filed an internal grievance and was afforded a meeting with the
hospital president to tell her side of the story. And, even then,
before making the plaintiff’s employment termination final, the
hospital conducted yet another interview with the employee who
had originally complained about the plaintiff’s speech and sought
assurances of all employees’ credibility from supervisors.
Id. (citing Waters, 511 U.S. at 666, 680). At the very least, the court suggested,
“without at least asking an employee what she said, an employer’s
indispensable investigation into whether an employee’s speech was protected
will not be reasonable.” Id.

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No. 13-40685
Moreover, in each prior case, the pre-termination investigation the court
has found reasonable was the product of written reports and involved routine
procedural channels for investigation. In Waters, the Court noted that the
plaintiff availed herself of internal grievance procedures, in the course of which
decisionmakers had the opportunity to review “written reports” and conduct
follow-up interviews. 511 U.S. at 666–67. In Johnson, the decisionmaker acted
on an “investigative report” submitted to him by a subordinate, and the
decisionmaker invited the plaintiff to “submit evidence” and other statements
in support of his claims. 369 F.3d at 829. In Salge, by contrast, the
decisionmaker made no report and compiled no evidence, and we held the
investigation was unreasonable. 411 F.3d at 183, 194–95.
In sum, our court has made clear that reasonableness depends in part
on an investigation’s thoroughness and typically results from some formal
process for reviewing evidence and weighing disputed claims. This is true even
though Waters clearly stated that an investigation “need not be [conducted
with] the care with which trials, with their rules of evidence and procedure,
are conducted.” 511 U.S. at 677–78; cf. Gonzales v. Dall. Cnty., 249 F.3d 406,
412 (5th Cir. 2001) (granting qualified immunity because “the fact that
[defendants] may have relied on hearsay or made credibility determinations . . .
does not necessarily suggest that the decision to terminate . . . was
unreasonable”). Still, the investigation has to be made according to “the care
that a reasonable manager would use before making an employment decision—
discharge, suspension, reprimand, or whatever else—of the sort involved in the
particular case.” Waters, 511 U.S. at 678. The Defendants are incorrect that
all that was required of them was to “talk to the employee and talk to the direct
witness to the speech at issue.” Our circuit has made clear that more than just
talking is required to conduct an investigation.

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No. 13-40685
By this standard, taking the facts as Cutler has established, the
Defendants here should have known that their investigation was woefully
inadequate. Most importantly, unlike every other case, the Defendants
prepared no report and operated according to an ad hoc process. The only
written record before the court is Robinson’s vague and incomplete notes of his
conversation with Cutler. Based on Himes’s statements, one could reasonably
infer that the Defendants had regular investigative procedures available to
them but chose not to use them. The Defendants conducted only two
interviews, far fewer than in any case we have previously found reasonable.
Based on our review of similar cases, we conclude that every reasonable official
in the Defendants’ positions would have known based on these cases that an
informal, hastily concluded investigation would be unreasonable.
In addition, the Defendants’ investigation was not conducted in good
faith as is required by Waters. As the Waters Court stated, “It is necessary
that the decisionmaker reach its conclusion about what was said in good faith,
rather than as a pretext.” 511 U.S. at 677. The district court found facts that
suggest the Defendants’ investigation was pretextual. The Defendants could
not be said to be acting in good faith on the investigation, if, as the district
court found, Berry had already concluded that the University should fire
Cutler, before Berry had even spoken with Cutler. Evidence also suggests that
Berry formed his termination decision based on past reports of Cutler’s
interactions with staff unrelated to his communications to Rep. Gohmert’s
office. Any reasonable official would know on the basis of Waters that an
investigation that was pretextual could not be reasonable.
To be clear, this holding does not foreclose the Defendants from later
proving that they are entitled to qualified immunity. Trial may resolve the
central credibility determination: whose account of the content of Cutler’s

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No. 13-40685
conversations is correct. We only reach the conclusion that the law was clearly
established based on the undisputed facts and accepting plaintiff’s version of
the facts that the district court found disputed. We lack jurisdiction to second-
guess the district court’s factual determinations at this early juncture.
Therefore, we hold that the district court did not err in finding that the
law was “clearly established.”
V. CONCLUSION
In conclusion, we affirm the district court’s denial of summary judgment
on qualified immunity grounds and dismiss all of Defendants’ other claims.

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