United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT November 23, 2004
Charles R. Fulbruge III
Clerk
No. 03-51369
ALAN W. ALEXANDER; BILLY DAVIS; JOSEPH RANDY DILLARD; RUBEN
DURAN; KENNY FOSTER; MARIA G. GARZA; GREGORY HAIRE; BOBBY HARPER;
EDUARDO JIMENEZ; DENNIS D. LAND; DANNY LEWIS; WILLIAM D. LORD;
JAMES S. LUCAS; GARY P. MCCULLY; ROBERT E. RALLS; JERRY SCHWAB,
Plaintiffs - Appellees-Cross-Appellants,
versus
WALTER “CHAPS” EEDS, III, Individually; GRADY MICHAEL DUNN,
Individually; MICHAEL DOUGLAS SCOTT, Individually; KENT WEIR
MAWYER, Individually; DAVID MAURY GRIFFITH, Individually; EARL
WELDON MCNEIL, JR., Individually,
Defendants - Appellants-Cross-Appellees.
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Appeals from the United States District Court
for the Western District of Texas
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Before REAVLEY, WIENER, and BENAVIDES, Circuit Judges.
FORTUNATO BENAVIDES, Circuit Judge:
In this direct civil appeal, Alan W. Alexander and other
Texas Department of Public Safety (“DPS”) Officers, Plaintiffs -
Appellees-Cross-Appellants, challenge the district court’s
rulings granting summary judgment and judgment on the pleadings
in favor of Walter “Chaps” Eeds, III, and other senior DPS
officials, Defendants - Appellants-Cross-Appellees. Defendants
challenge the district court’s denial of summary judgment on two
1
Plaintiffs’ claims. For the reasons that follow, we affirm, in
part, and reverse, in part.
I. Background
Alan W. Alexander, Billy Davis, Joseph Randy Dillard, Ruben
Duran, Kenny Foster, Maria G. Garza, Gregory Haire, Bobby Harper,
Eduardo Jimenez, Dennis D. Land, Danny Lewis, William D. Lord,
James S. Lucas, Gary P. McCully, Robert E. Ralls, and Jerry
Schwab, Plaintiffs in this case, are all DPS lieutenants.
Defendants, Walter “Chaps” Eeds, III, Grady M. Dunn, Michael D.
Scott, Kent W. Mawyer, David M. Griffith, and Earl W. McNeil,
Jr., are all DPS supervisors. Plaintiffs participated in a
competitive examination process to advance from the rank of
“lieutenant” to that of “narcotics service captain.”
A six-member panel administered part of the examination.
Five of its members are Defendants in this case: Eeds, Dunn,
McNeil, Mawyer, and Griffith. The sixth board member was
Assistant Commander Wilber Eugene Hawkins. The eleven candidates
with the highest scores were sent to Defendant Chief Scott.
After reviewing the list of eleven, Scott sent it to Thomas A.
Davis, Director of DPS, who was empowered to make alternative
promotions for just cause. Following Davis’s ratification, the
lieutenants with the eleven highest scores received promotions.
Plaintiffs allege that senior officers, including Defendants
Scott, Eeds, and Dunn, unfairly preselected eleven candidates for
2
promotion. They claim that Defendants belonged to an informal
social organization called the “Houston Bar-B-Que Club,” which
influences DPS promotions and policy. The senior officers in the
Club groom their favorites for leadership positions in DPS.
Scott, Eeds, Dunn, and Deputy Commander Bobby Duvall devised a
strategy for rigging the examination results and shared this with
the other members of the examination panel.
Seven Plaintiffs claim that they were blackballed because of
constitutionally-protected statements they made. These seven are
Foster, Harper, Alexander, Lucas, Schwab, Ralls, and McCully.1
Plaintiffs filed suit in the Austin Division of the U.S.
District Court for the Western District of Texas on August 20,
2002. The suit alleged, inter alia, violations of the U.S.
Constitution’s Equal Protection Clause. After Defendants filed a
motion to dismiss, Plaintiffs amended their complaint to include
a new 42 U.S.C. § 1983 claim alleging retaliation for protected
speech. On November 27, 2002, the district court dismissed all
claims except for the § 1983 retaliation claim.
Following discovery, Defendants moved for summary judgment
on all claims. On November 7, 2003, the district court granted
summary judgment, inter alia, on the protected speech retaliation
1
McCully is not addressed in the district court’s order, but
his First Amendment retaliation claim was dismissed. Plaintiffs
assume the grounds for the dismissal of McCully’s claim were the
same as for the others because of the similar set of facts at
issue, and thus we treat them as such.
3
claims of Alexander, Lucas, Ralls, and Schwab, and denied summary
judgment on the claims of Foster and Harper. Following this
judgment, both sides filed appeals. Through agreement and court
order all other claims have been removed to state court or
dismissed.
II. Discussion
We review grants of summary judgment under Federal Rule of
Civil Procedure 56 de novo, applying the same standards the
district court used. Am. Home Assurance Co. v. United Space
Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary
judgment motion is properly granted only when, viewing the
evidence in the light most favorable to the nonmoving party, the
record indicates that there is no genuine issue as to any
material fact, and that the moving party is entitled to judgment
as a matter of law.” Id. Facts are material only if they could
affect the lawsuit’s outcome. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). Any factual controversy will be
resolved in the nonmovant’s favor, but only “when both parties
have submitted evidence of contradictory facts.” Olabisiomotosho
v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999).
A. Protected speech retaliation claims of Lucas,
Alexander, Ralls, Schwab and McCully
Plaintiffs argue that the district court erred in granting
the motion for summary judgment with regard to the retaliation
4
claims of Lucas, Alexander, Ralls, Schwab and McCully.2
To establish a § 1983 claim for retaliation, Plaintiffs must
show: (1) they suffered an adverse employment action; (2) the
speech at issue involved matters of public concern; (3)
Plaintiffs’ interest in the speech outweighs the government’s
interest in efficiency; and (4) the speech precipitated the
adverse employment action. Kinney v. Weaver, 367 F.3d 337, 356
(5th Cir. 2004). If this test is passed, the burden shifts to
Defendants to show that “they would have come to the same
conclusion in the absence of the protected conduct.” Beattie v.
Madison County Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001).
The district court found that Lucas, Alexander, Ralls,
Schwab, and McCully failed to establish a § 1983 claim because
they did not proffer evidence showing speech on matters of public
concern, the second requirement. We agree with this conclusion.
“Matters of public concern are those which can ‘be fairly
considered as relating to any matter of political, social, or
other concern to the community.’” Branton v. City of Dallas, 272
F.3d 730, 739 (5th Cir. 2001) (quoting Connick v. Meyers, 461
U.S. 138, 146 (1983)). “While speech pertaining to internal
personnel disputes and working conditions ordinarily will not
involve public concern, speech ‘complaining of misconduct within
2
As noted supra, the district court’s ruling did not address
McCully.
5
the police department . . . [is] speech addressing a matter of
public concern.’” Id. (citations omitted).
In Connick, the Supreme Court taught that “when a public
employee speaks . . . as 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 147.
“Whether an employee’s speech addresses a matter of public
concern must be determined by the content, form, and context of a
given statement.” Id. at 147-48. This Court followed that
dictate in Branton when it ruled that disclosure of a police
officer’s malfeasance constitutes a public concern. See 272 F.3d
at 739-40.
Each Plaintiff attempts to identify incidents of protected
speech. Alexander objected to a policy imposed by DPS management
that prohibited narcotics officers from wearing identity-
concealing masks, or balaclavas, when conducting raids. This
policy was generated in response to a DPS Commissioner’s concern
that wearing such masks would give DPS a bad image. Alexander
and others expressed fear about potential drug dealer retaliation
against officers identified in the raids. Lucas posed questions
to higher-ups concerning the fairness of the promotion process.
Ralls questioned the promotion process’ fairness and the
6
balaclavas policy, and complained over a period of time about
what he perceived as numerous policy and law violations in the
department. Schwab voiced concern about the promotion test’s
fairness. Finally, McCully objected to the balaclavas policy and
helped an officer receive public commendation against the wishes
of a DPS supervisor.
Plaintiffs’ complaints about the promotion process were
essentially private, not public in nature. These concerns were
voiced only in the form of questions regarding each officer’s
attempt to attain promotion, not about general promotion policy.
The form of these questions was clearly private, as they were not
leaked to a reporter or sent to an elected state official. Cf.
Markos v. City of Atlanta, 364 F.3d 567, 571 (5th Cir. 2004)
(finding plaintiff’s speech “quintessentially public as his
comments appeared in the form of an article in the local
newspaper”). The context of these comments was also completely
private. No one could reasonably argue that these complaints
“‘were made against a backdrop of widespread debate in the
community’” or could “make valuable contributions to public
debate.” See id. at 572 (citations omitted). They were merely
private concerns reflecting personal interest.
Likewise, conversation about the balaclavas policy is most
properly understood in this situation as private. No ongoing
public debate raged on this issue, and no one outside DPS was
7
contacted regarding this matter. Cf. Tompkins v. Vickers, 26
F.3d 603, 607 (5th Cir. 1994) (finding speech to be public when
art teacher’s complaints in a “letter to the editor of the local
newspaper” about elimination of art program “were made against a
backdrop of widespread debate in the . . . community regarding
the art program”).
McCully’s efforts to see that a junior officer be commended
for an act of heroism is not an issue of public policy. There
was no policy being debated or malfeasance disclosed.
Finally, we cannot conclude that any of Ralls’s additional
speech addressed a public concern. There is not enough context
given in the briefs or in the record to make such a finding.
While the facts of this case give us great pause in as much
as they reflect a very troubling promotion process, reeking of
cronyism, within DPS, because the § 1983 actions are brought to
us in the context of alleged First Amendment violations, the
inquiry necessary leads us to conclude that Plaintiffs’ claims
are unsupported. Because the speech of Lucas, Alexander, Schwab,
Ralls, and McCully was not protected by the First Amendment, the
district court correctly granted summary judgment on these § 1983
claims. We affirm the district court’s ruling.
B. Qualified immunity
The district court also granted summary judgment for
Defendants as to the § 1983 claims of Lucas, Ralls, Alexander,
8
and Schwab, on the alternative ground of qualified immunity.3 It
denied summary judgment on the basis of qualified immunity with
regards to the § 1983 claims of Foster and Harper.4
To determine whether government officials are entitled to
qualified immunity, we apply a two-step test. “First, a court
must decide whether a plaintiff’s allegation, if true,
establishes a violation of a clearly established right.”
Hernandez v. Tex. Dept. of Protective & Regulatory Servs., 380
F.3d 872, 879 (5th Cir. 2004). Without an established right,
qualified immunity is granted. Id. “Second, if the plaintiff
has alleged a violation, the court must decide whether the
conduct was objectively reasonable in light of clearly
established law at the time of the incident.” Id.
We dispense with any further analysis concerning Lucas,
Ralls, Alexander, Schwab, and McCully. As concluded supra, their
speech was not constitutionally protected. Therefore, they have
not successfully alleged a violation of an established right and
qualified immunity was properly granted.
Determining whether Foster and Harper have alleged a
violation of a clearly established right involves an application
of constitutional standards as they existed at the time of the
3
Again, for our purposes, it is assumed that this ruling
applied to McCully as well.
4
This denial is properly appealable to this Court. See
Behrens v. Pelletier, 516 U.S. 299, 307 (1996).
9
alleged violation.5 See Hare v. City of Corinth, 135 F.3d 320,
326 (5th Cir. 1998). In this case, the standard is that of
retaliation for speech protected by the First Amendment under §
1983. See Lukan v. North Forest Indep. Sch. Dist., 183 F.3d 342,
345-46 (5th Cir. 1999). Thus, to decide whether Harper and
Foster have alleged facts that could show a violation of a
clearly established right, we use the same four-part test applied
supra: (1) Did Harper and Foster suffer adverse employment
actions?; (2) Did the speech at issue involve matters of public
concern?; (3) Do Harper’s and Foster’s interests in their speech
outweigh the government’s interest in efficiency?; and (4) Did
the speech precipitate the adverse employment action? See
Kinney, 367 F.3d at 356.
If this test is passed, the burden shifts to Defendants to
show that “they would have come to the same conclusion in the
absence of the protected conduct.” Beattie, 254 F.3d at 601. To
begin, we must determine whether Harper and Foster allege facts
showing violations of a constitutional right.6 It is clear that
Plaintiffs have suffered an adverse employment action in that
5
Defendants contend that we must consider each Defendant
separately during the qualified immunity analysis. Because of
evidence that would allow a finder of fact to determine all
Defendants acted in concert in rigging the promotion process, we
treat all Defendants similarly for present purposes.
6
“Where factual disputes exist in an interlocutory appeal
asserting qualified immunity, we accept the plaintiffs’ version
of the facts as true.” Kinney, 367 F.3d at 348.
10
they were not promoted, so no analysis is needed on that first
part of the test.
In 2001, Foster, who performed internal affairs
investigations for DPS, discovered that DPS Lieutenant Dan Walker
was unable to account for twenty-eight firearms under his care.
Foster subsequently learned that Walker’s alleged carelessness
violated state code and departmental policy. Walker resigned his
position to avoid punishment. Shortly before resigning, the
heretofore friendly Walker completely avoided Foster, indicating
he knew Foster reported the negligence. Walker’s brother, also a
DPS employee, was friends with Eeds and Dunn.
Harper’s case involves a state law passed in 2000 requiring
a certain number of “non-mission critical personnel” to turn
their police vehicles in to the department so transportation
would be available at a central location. DPS Director Davis
decided that this new rule would not apply to upper-level
management since personal use of police vehicles was
traditionally a perk for those who received promotions. Instead,
lower-level officers, some of whom actually needed to have
constant access to their vehicles, were directed to park them at
headquarters. Davis then informed the legislature that DPS
complied with the new law. Some of the vehicles now mandatorily
parked at headquarters were SWAT vehicles. Concerned about the
situation, Harper, a SWAT team member, complained to his
superiors and other state officials. An aide to Representative
11
Pete Gallego advised Harper that the law was not meant to apply
to SWAT vehicles and Harper relayed this to one of his superiors.
He warned Harper to cease his efforts or risk losing his job.
In May 2000, Davis was questioned by the Chairman of the
Criminal Justice House Committee about this situation. The
Representative had received a letter of complaint from Harper.
Davis informed him that the problem had been corrected and Harper
had resigned. Harper believed that both of these statements
constituted perjury and he reported this to his supervisor.
1. Did Harper’s and Foster’s speech involve a public concern?
As discussed in greater detail supra, “[w]hether an
employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given
statement.” Connick, 461 U.S. at 147-48. We apply this same
test to the speech of Harper and Foster.
Foster’s speech did not deal with a matter of public
concern. We have stated: “‘The disclosure of misbehavior by
public officials is a matter of public interest and therefore
deserves constitutional protection, especially when it concerns
the operation of a police department.’” Branton, 272 F.3d at 745
(citation omitted). And, in Branton, we found that an internal
affairs officer’s complaint did constitute a public concern. See
id. at 740-41. Specifically, Branton complained to the Assistant
City Manager of dishonest testimony given by an officer at a
12
disciplinary hearing. See id. at 736-37.
The facts of Branton are distinguishable, though. First, as
to content, Branton’s speech concerned lying to a public official
– clear “malfeasance.” As we have noted, “speech reporting
official misconduct, wrongdoing, or malfeasance on the part of
public officials involves matters of public concern.” Denton v.
Morgan, 136 F.3d 1038, 1043 (5th Cir. 1998). Foster’s speech
disclosed incompetence, not wrong-doing or corruption. The form
of Branton’s speech, a complaint to a city official, went outside
of the police department, whereas Foster’s filing of a report
concerning missing weapons was an internal DPS matter. Finally,
the context of Foster’s speech was private, in that it had
nothing to do with a public debate or existing public issue. See
Markos, 364 F.3d at 572. Foster was not a whistleblower, but an
internal investigator compiling reports on police error as part
of his job. See Foley v. Univ. of Houston Sys., 355 F.3d 333,
341-42 (5th Cir. 2003) (“[I]f the individual spoke primarily as
an employee rather than as a citizen, [his speech] is not
regarded as addressing a matter of public concern.”).
Because we have not found speech on a public concern, we
find no established right was violated. We, therefore, reverse
the district court’s ruling and grant qualified immunity to
Defendants on Foster’s § 1983 claim.
Harper’s speech, on the other hand, concerns a public issue.
13
He alleged misapplication of state law and perjury before the
Texas legislature. His method, contacting elected state
officials, is clearly public, as is the context in that it
concerned a state law and public testimony before an elected
body.
Thus, to determine if Plaintiffs are entitled to qualified
immunity as to Harper’s speech we must consider the rest of the
four-part test.
2. Does Harper’s interest in his protected speech
outweigh DPS’ interest in efficiency?
Harper’s speech also passes this prong of the analysis. We
apply the “Pickering balancing test,” which balances a
plaintiff’s First Amendment rights, on one hand, and “‘the
interest of the State, as an employer, in promoting the
efficiency of the public services it performs through its
employees,’” on the other. Rankin v. McPherson, 483 U.S. 378,
388 (1987) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568
(1968)). It “recognize[s] as pertinent considerations whether
the statement impairs discipline by superiors or harmony among
co-workers, has a detrimental impact on close working
relationships . . . , or impedes the performance of the speaker’s
duties or interferes with the regular operation of the
enterprise.” Id. There is no evidence that Harper’s speech
damaged DPS morale or efficiency. He was not disobedient; rather
he wanted to ensure the law was followed.
14
3. Did the speech precipitate the adverse employment action?
Harper presents evidence that could allow a fact finder to
infer a causal connection between his protected speech and the
denial of a promotion. For instance, he received a warning that
he could be fired because of his speech.
4. Would Defendants have come to the same conclusion
absent the protected speech?
The evidence proffered by Plaintiffs in this case could
allow a reasonable finder of fact to conclude that the promotion
process was rigged against Plaintiffs. And, since Harper’s
speech clearly threatened senior DPS officials, one could
reasonably deduce that Defendants would not have reached the same
conclusion absent the protected conduct.
5. Was Defendants’ alleged behavior objectively reasonable?
Since Harper has successfully alleged a violation of a
clearly established right, the final question is whether this
right existed at the time of the violation so that Defendants’
alleged behavior may be deemed objectively unreasonable. Harper
“must show that ‘the contours of the right [were] sufficiently
clear that a reasonable official would understand that what he is
doing violates that right.’ . . . Qualified immunity should not
be denied unless the law is such that reasonable officials should
be ‘on notice [that] their conduct is unlawful.’” Kinney, 367
F.3d at 367 (citations omitted).
Reporting serious police misconduct or corruption is an
15
activity with well-established protections. See Branton, 272
F.3d at 744 (“For at least thirty-four years, it has been settled
that a state cannot condition public employment on a basis that
infringes the employee’s constitutionally protected interest in
freedom of expression.”); Brawner v. City of Richardson, 855 F.2d
187, 191-92 (5th Cir. 1988) (“The disclosure of misbehavior by
public officials is a matter of public interest and therefore
deserves constitutional protection, especially when it concerns
the operation of a police department.”). Thus, Defendants are
not entitled to qualified immunity for the alleged § 1983
violation concerning Harper. We affirm the district court’s
ruling.
C. Plaintiffs’ Equal Protection Claims
While we do not approve of promoting friends over others who
may have superior objective qualifications, we cannot say that
such a practice is not rationally related to a legitimate
governmental objective. See Kotch v. Bd. of River Port Pilot
Comm’rs., 330 U.S. 552, 563 (1947) (upholding nepotistic system
of appointing State-employed pilots as rationally related to the
legitimate governmental interest of “morale and esprit de
corps”). Thus, the district court correctly granted Defendants’
Federal Rule of Civil Procedure 12(b)(6) motion on the ground
that Plaintiffs failed to present a Fourteenth Amendment equal
protection violation. Accordingly, we affirm the district
16
court’s ruling.
The denial of summary judgment for Defendants on Foster’s §
1983 claim is REVERSED. The rulings of the district court are
otherwise AFFIRMED. This matter is REMANDED for further
appropriate proceedings.
17