Victor v. McElveen

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 96-30991

EUGENE VICTOR,

Plaintiff-Appellant,

VERSUS

WAYNE McELVEEN, Individually and as Sheriff of the Parish of
Calcasieu,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Louisiana

August 6, 1998
Before DeMOSS and DENNIS, Circuit Judges, and ROSENTHAL*, District
Judge.

DENNIS, Circuit Judge:

1 In this case we review the district court’s summary judgment

2 dismissing an action by a former sheriff’s deputy under 42 U.S.C.

3 § 1983 for damages resulting from the sheriff’s wrongful

4 termination of his employment in violation of his First Amendment

5 right to free speech. The deputy, Eugene Victor, an African-

*
District Judge of the Southern District of Texas, sitting by
designation.
6 American, was discharged by the sheriff for statements Victor made

7 at a workplace meeting to which the sheriff had summoned a group of

8 black deputies to explain and discuss the implementation of a

9 Community Oriented Police Servicing (“COPS”) program for a

10 community predominantly of black citizens. The sheriff planned to

11 employ an all-black, 12-deputy workforce in the program; another

12 purpose of the meeting was to solicit applicants for those

13 positions. In response to the sheriff’s request for input from the

14 deputies about the program, while a newspaper reporter was present,

15 Victor complained that only black deputies had been required to

16 attend the meeting, stated that deputies of all races should have

17 been involved, and asserted that an equal number of black and white

18 deputies should be employed in the program to avoid a situation

19 similar to that which prevailed in 1980; at that time, according

20 to Victor, black deputies were permitted to patrol only in black

21 neighborhoods. A local newspaper ran a story on the meeting

22 highlighting some of Victor’s remarks. Four days after the meeting

23 the sheriff fired Victor for “making false statements regarding

24 this department during an informational meeting with other

25 deputies, and causing dissension within the department.”

26 The district court held that: (1) Victor’s speech did not

27 address a matter of public concern; and (2) Victor’s expressions --

28 particularly his statement that there were enough black people at

29 the meeting for a “Tarzan movie” -- caused dissension, contained

30 irrelevant statements, and interfered with effective operations;

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31 therefore, Victor’s interest in making his statements was

32 outweighed by the interest of the state in the effective

33 functioning of the sheriff’s office. We reverse and remand for

34 further proceedings. Victor’s protest against racial

35 discrimination was both inherently, and in content, form and

36 context, a matter of public concern. There are genuine disputes as

37 to issues of material facts determinative of whether any of

38 Victor’s statements were knowingly or recklessly false and whether

39 his speech as a whole so interfered with the efficient functioning

40 of the sheriff’s office that the state’s interest therein outweighs

41 Victor’s First Amendment rights.

42 I

43 The district court’s conclusion that summary judgment was

44 appropriate is a question which we review de novo. See, e.g.,

45 Dawkins v. Sears Roebuck and Co., 109 F.3d 241, 242 (5th Cir.

46 1997). Summary judgment is proper only when it appears that there

47 is no genuine issue of material fact and that the moving party is

48 entitled to judgment as a matter of law. FED. R. CIV. P. 56(c). On

49 summary judgment the inferences to be drawn from the underlying

50 facts contained in the affidavits, depositions, and exhibits of

51 record must be viewed in the light most favorable to the party

52 opposing the motion. United States v. Diebold, Inc., 369 U.S. 654,

53 655 (1962).

54 II

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55 Construing the record in the light most favorable to the

56 nonmovant, Victor, we draw inferences from the underlying facts as

57 follows. Eugene Victor served as a deputy marshal under then-city

58 marshal Wayne McElveen from 1973 until 1980. In 1980 after

59 McElveen was elected Sheriff of Calcasieu Parish, he employed

60 Victor as a deputy. Victor was assigned to a succession of jobs

61 over the years: graveyard shift patrol, traffic department,

62 internal affairs, and the transportation division. Victor finally

63 served as a courtroom bailiff for the two years before his

64 dismissal on December 6, 1994.

65 In 1994, the Calcasieu Parish Sheriff’s Department received a

66 federal grant under the Community Oriented Police Servicing

67 (“COPS”) program, a program that provides federal funds to

68 establish community-based policing in high crime areas. The

69 department received the grant for North Lake Charles, an area

70 inhabited predominantly by black citizens. Sheriff McElveen called

71 an informational meeting to discuss implementation of the COPS

72 program. The sheriff’s department sent letters to a group of

73 black deputies informing them that the meeting was “mandatory” and

74 that their attendance was “required.” The department also posted

75 notice of the meeting in the squad room. The notice invited, but

76 did not require, all department personnel to attend the meeting.

77 Victor testified in his deposition that the general notice was not

78 posted until after the meeting began.

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79 The meeting was held on December 1, 1994. Of the 75 to 80

80 persons at the meeting only four or five were white, including the

81 sheriff and one or two supervisory deputies. A newspaper reporter

82 covered the event although she had not been invited by the

83 sheriff’s office. The sheriff, after briefly explaining his plans

84 for the COPS program, asked for questions and comments from the

85 deputies about the program. Deputy Victor was the first to be

86 recognized. Before voicing his concerns, Victor asked for and

87 received the sheriff’s assurance that he could speak freely without

88 “any fear of any retribution of any kind.” Victor complained that

89 the sheriff’s department had required the presence of the group of

90 black deputies but not the attendance of any white deputy. He

91 began with a remark that there were “enough black people here to do

92 a Tarzan movie,” or words to that effect. He perceived the

93 sheriff’s plan as calling for the employment of only black deputies

94 in the program. He protested that deputies of other ethnic groups

95 should be included in the meeting and the program. According to

96 one deputy present, Victor recommended that six white and six black

97 deputies be assigned to the program. Victor asserted that in 1980

98 the sheriff’s department had a policy, since abolished, of

99 restricting black deputies’ patrol duties to North Lake Charles, an

100 area populated mainly by black people. His remarks may be fairly

101 characterized as a warning that a COPS program with only black

102 deputies on front line duty would be a step backward, detrimental

103 to the community and the department. After Victor’s remarks, the

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104 sheriff and other deputies stated that it was not true that the

105 department in 1980 had restricted the patrols of black deputies to

106 North Lake Charles. Further, the sheriff explained that, even if

107 the twelve COPS deputies closely involved with the community were

108 to be black, the regular deputy patrols within the area would

109 continue to include white officers. The sheriff acknowledged in

110 his deposition, that subsequent to the meeting he had employed

111 eleven black and one white deputies for the COPS program. The

112 sheriff testified, however, that this racial makeup was required

113 for an effective COPS program, and was not a sign of bigotry as he

114 thought Victor had stated or suggested at the meeting. Other black

115 deputies disagreed with Victor and contended that providing twelve

116 black deputies for community oriented police services would be

117 beneficial to the deputies and the community. After Victor’s

118 remarks and the reactions thereto, which consumed about ten

119 minutes, the meeting resumed with a more detailed explanation of

120 the proposed COPS program by Richard F. Tanous, the sheriff’s

121 department systems administrator, and concluded without any

122 untoward incident. The next day the newspaper published an article

123 about the meeting, featuring some of Victor’s statements. The

124 sheriff fired Victor four days after the meeting for “making false

125 statements regarding this department during an informational

126 meeting with other deputies, and causing dissension within the

127 department.”

128 Victor brought the present action under 48 U.S.C. § 1983

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129 against Sheriff Wayne McElveen, individually and as sheriff of

130 Calcasieu Parish, alleging that the sheriff’s termination of his

131 employment violated his right to free speech secured by the First

132 and Fourteenth Amendments. The suit also alleged that Sheriff

133 McElveen’s actions violated his rights under the Fifth and

134 Fourteenth Amendments. The sheriff moved for summary judgment

135 denying Victor’s claims and sustaining his defense of qualified

136 immunity. The district court granted summary judgment dismissing

137 Victor’s claims with prejudice. The court concluded that Victor’s

138 speech did not address a matter of public concern, as he spoke

139 primarily in his role as a public employee and not in his role as

140 a citizen. The district court further held that, assuming the

141 speech involved a matter of public concern, the government’s

142 interest, as an employer, outweighed Victor’s First Amendment

143 interest in commenting on the matter. The district court also

144 granted summary judgment for Sheriff McElveen on Victor’s Fifth and

145 Fourteenth Amendment claim. The district court did not rule on

146 Sheriff McElveen’s defense of qualified immunity.

147 Victor appeals from the district court’s decision that his

148 First Amendment rights were not violated. He does not challenge

149 dismissal of the Fifth and Fourteenth Amendment claim.

150 III

151 It has long been established that the government may not

152 constitutionally compel persons to relinquish their First Amendment

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153 rights as a condition of public employment. E.g., Keyishian v.

154 Board of Regents, 385 U.S. 589 (1967); Connick v. Myers, 461 U.S.

155 138 (1983); Pickering v. Board of Education, 391 U.S. 563 (1968);

156 Perry v. Sindermann, 408 U.S. 593 (1972). The Pickering Court

157 held that the First Amendment protects the rights of public

158 employees “as citizens to comment on matters of public interest” in

159 connection with the operation of the government agencies for which

160 they work. Pickering, 391 U.S. at 568. The government has

161 legitimate interests in regulating the speech of its employees,

162 however, that differ significantly from its interests in regulating

163 the speech of people generally. Id. The scope of public

164 employees’ First Amendment rights must be determined by balancing

165 “the interests of the [employee], as a citizen, in commenting upon

166 matters of public concern and the interest of the State, as an

167 employer, in promoting the efficiency of the public services it

168 performs through its employees.” Id.

169 The threshold question in applying the Pickering balancing

170 test is whether Victor’s speech may be “fairly characterized as

171 constituting speech on a matter of public concern.” Connick, 461

172 U.S. at 146. “Whether an employee’s speech addresses a matter of

173 public concern must be determined by the content, form, and context

174 of a given statement, as revealed by the whole record.” Id. at

175 147-148. “‘[W]e are compelled to examine for ourselves the

176 statements in issue and the circumstances under which they [were]

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177 made to see whether or not they . . . are of a character which the

178 principles of the First Amendment, as adopted by the Due Process

179 Clause of the Fourteenth Amendment, protect.’” Id. at 150 n.10

180 (quoting Pennekamp v. Florida, 328 U.S. 331, 335 (1946)(footnote

181 omitted)). The employee’s “right to protest racial discrimination,

182 [however, is] a matter inherently of public concern [and] is not

183 forfeited by her choice of a private[, rather than a public]

184 forum.” Id. at 148 n.8 (citing Givhan v. Western Line Consol. Sch.

185 Dist., 439 US 410, 415-416 (1979)); see also Wilson v. UT Health

186 Ctr., 973 F.2d 1263, 1269 (5th Cir. 1992)(“The content of [the]

187 speech -- reports of sexual harassment perpetrated on [plaintiff]

188 and other women -- is of great public concern.”).

189 The content of Victor’s speech was inherently of public

190 concern because it was a protest against racial discrimination.

191 Victor’s protest may be fairly characterized as criticizing the

192 sheriff for holding a meeting that only African-American deputies

193 were required to attend for the purpose of explaining and

194 discussing the implementation of a federally funded program that

195 would serve a community of predominantly black residents. His

196 remarks may be reasonably viewed as expressing concerns that

197 deputies of other races or ethnic groups would not be involved in

198 planning or carrying out the program in the black community.

199 Victor’s comments indicated his apprehension that the sheriff

200 planned to employ only black deputies in the COPS program, which he

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201 thought would be a regressive step for the community and the

202 department. He stated that the department had a policy in 1980 of

203 assigning black deputies to serve exclusively in predominantly

204 black neighborhoods. Consequently, Victor’s expression can be

205 “fairly considered as relating to [a] matter of political, social,

206 or other concern to the community[.]” Connick, 461 U.S. at 146.

207 Considering Victor’s statement with respect to its context and

208 form confirms that the speech dealt with a matter of public

209 concern. The statement was made in the course of a meeting

210 arranged by the sheriff to inform a group of black deputies about

211 a new federally funded program to be administered by the sheriff’s

212 office to provide community oriented police service in a high crime

213 area inhabited predominantly by black citizens. The meeting was

214 attended by a representative of the press. The sheriff, after his

215 initial remarks describing the program, invited the deputies to ask

216 questions and make comments about the program. The sheriff

217 recognized Victor for this purpose. Before making his remarks,

218 Victor asked the sheriff for and was given assurance that he could

219 speak freely without “any fear of any retribution of any kind.”

220 Victor spoke as a citizen on a matter of public concern, not

221 as an employee upon matters only of personal interest. See

222 Connick, 461 U.S. at 147. At the time of his remarks, Victor was

223 well pleased with his position as a courtroom bailiff; there was

224 no evidence that he was a disgruntled employee or had any personal

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225 reason to protest what he perceived to be the potential racially

226 discriminatory effects of the sheriff’s approach to the new

227 program. Because Victor knew of the presence of the newspaper

228 reporter, it may be reasonably inferred that he intended to inform

229 the public of his criticism of the racial orientation of the

230 deputies’ meeting and the sheriff’s plan to employ only black

231 deputies in the COPS program. Thus, Victor’s speech had the

232 earmarks of a citizen speaking out publicly on a matter of general

233 concern, not that of an employee engaged in a personal employment

234 dispute. See id. at 148 & n.8. Consequently, the context of

235 Victor’s remarks, as well as their inherent characteristic as a

236 protest against racial discrimination, demonstrate that he spoke on

237 a matter of public interest and concern.

238 The sheriff disputes the accuracy of Victor’s reference to the

239 department’s past policy of ethnical patrol assignments and

240 deplores Victor’s “Tarzan movie” simile as upsetting to him and his

241 employees. However, “[t]he inappropriate or controversial character

242 of a statement is irrelevant to the question whether it deals with

243 a matter of public concern.” Rankin v. McPherson, 483 U.S. 378,

244 387 (1987); see also id.(“‘[D]ebate on public issues should be

245 uninhibited, robust, and wide-open, and . . . may well include

246 vehement, caustic, and sometimes unpleasantly sharp attacks on

247 government and public officials.’”)(quoting New York Times Co. v.

248 Sullivan, 376 U.S. 254, 270 (1964)); Bond v. Floyd, 385 U.S. 116,

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249 136 (1966)(“Just as erroneous statements must be protected to give

250 freedom of expression the breathing space it needs to survive, so

251 statements criticizing public policy and the implementation of it

252 must be similarly protected.”) Also, of course, genuine disputes

253 as to issues of material facts must be resolved at trial, not by

254 summary judgment.

255 Because Victor’s statement addressed a matter of public

256 concern, Pickering next requires that we balance Victor’s interest

257 in making his statement against “the interest of the State, as an

258 employer, in promoting the efficiency of the public services it

259 performs through its employees.” Pickering, 391 U.S. at 568. The

260 employee’s statement is not considered in a vacuum, however.

261 Rankin, 483 U.S. at 388. “In performing the balancing, . . . the

262 manner, time, and place of the employee’s expression are relevant,

263 as is the context in which the dispute arose.” Id. (citing

264 Connick, 461 U.S. at 152-153, and Givhan, 439 U.S. at 415 n.4).

265 The Supreme Court has recognized as pertinent considerations

266 “whether the statement impairs discipline by superiors or harmony

267 among co-workers, has a detrimental impact on close working

268 relationships for which personal loyalty and confidence are

269 necessary, or impedes the performance of the speaker’s duties or

270 interferes with the regular operation of the enterprise.” Id.

271 The state interest considerations focus on the effective

272 functioning of the public employer’s enterprise. “Interference

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273 with work, personnel relationships, or the speaker’s job

274 performance can detract from the public employer’s function;

275 avoiding such interference can be a strong state interest.” Id.

276 In this respect, however, the sheriff fails to demonstrate, without

277 dispute as to material facts, a state interest that outweighs

278 Victor’s First Amendment rights. Although Victor’s statement was

279 made at the workplace, there is a genuine dispute as to whether it

280 interfered with the efficient functioning of the sheriff’s office.

281 The summary judgment evidence contains the testimony of

282 several of the deputies who attended the meeting. Deputy Steward

283 testified in his deposition that he “had a heated conversation”

284 with Victor following the meeting. But Steward said that he was

285 “not upset to the intent that I was ready to fight him or hate

286 him,” and that, in fact, he liked Victor before and after the

287 meeting. One deputy testified that the comments were only slightly

288 disruptive, while another was reported to have been “upset” by

289 them. One deputy testified that Victor “disrupted the meeting

290 bad.” Richard Tanous, the department systems administrator who

291 made the main presentation at the meeting, testified, however, that

292 he was able to fully and effectively perform his duties following

293 Victor’s remarks. He testified that any disruption was over before

294 he made his presentation. Tanous described the effect of the

295 comments on the meeting as “more frustration on the part of the

296 administration and of the other employees who were there that were

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297 having to listen to it, that they wanted to hear what [the COPS

298 program] was going to be about and [Victor] was taking up valuable

299 time with these questions and comments without knowing what was

300 going to be said.” Tanous also stated that Victor’s remarks

301 “absolutely [did] not” cause racial tension in the department after

302 the meeting. When asked how long the “dissension” caused by

303 Victor’s statements lasted, the sheriff testified that “it lasted

304 a couple of days at least.” Viewing the summary judgment record in

305 the light most favorable to Victor, we conclude that the evidence

306 of record shows that Victor’s remarks in response to the sheriff’s

307 invitation of comments caused no unanticipated delays or disruption

308 or interference with the meeting or the functioning of the

309 sheriff’s office.

310 Moreover, concerns about maintaining harmony and eliminating

311 disruption cannot be the sole measure of government interest when

312 the employee’s speech furthers other important state interests.

313 For example, in Wilson v. UT Health Center, 973 F.2d 1263 (5th Cir.

314 1992), the defendant argued that a police officer’s interest in

315 reporting sexual harassment within the department was outweighed by

316 the police force’s interest in eliminating dissension and providing

317 efficient police protection. This court concluded, however, that if

318 a jury determines that the police officer “reported sexual

319 harassment in good faith,” then the state’s “interest in

320 maintaining a police force that is free of sexual intimidation,

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321 which [her] good faith reports would serve, outweighs any interest

322 in departmental efficiency and harmony.” Id. at 1270.

323 Similarly, a reasonable trier of fact could find that Victor’s

324 good faith comments would serve a very important state interest --

325 the prevention or elimination of racial discrimination and its

326 vestiges within state agencies, entities and departments. The

327 defendant attempts to justify his actions by noting that “[a]

328 charge of racism can most definitely affect morale, efficiency, and

329 functions of any interracial work environment.” The mere fact that

330 racial issues can be divisive, however, does not excuse retaliation

331 against an employee who in good faith raises perceived racially

332 discriminatory practices in an attempt to promote the welfare of

333 the governmental department. Cf. id. The record contains no

334 concrete evidence, as opposed to surmise or suspicion, that Victor

335 made any statement with knowing or reckless falsity or acted in bad

336 faith with an intent to disrupt the meeting or the sheriff’s

337 operations for an improper reason.

338 The fact that Victor’s remarks were made in response to the

339 sheriff’s express invitation to comment freely, frankly and without

340 fear of repercussion, on the COPS program as explained by the

341 sheriff, weighs heavily in favor of an inference that sincere,

342 critical responses should not have been surprising or considered as

343 an interference. As this court recognized in Bickel v. Burkhart,

344 632 F.2d 1251, 1257 (5th Cir. 1980), when an employee speaks in

15
345 response to an invitation and on a matter pertinent to that

346 request, the context factor weighs in his favor. Cf. Warnock v.

347 Pecos County, 116 F.3d 776, 781 (5th Cir. 1997) (“When a public

348 employer grants an employee the task of serving as ombudsman within

349 a particular field, it may not fire that employee for accurate and

350 thorough criticisms of the relevant governmental practices.”).

351 Bickel concerned the First Amendment claim of a firefighter who was

352 discharged when he voiced concerns about the fire department and

353 the state of its equipment at a departmental meeting. The Bickel

354 court made the following observation:

355 The context in which the plaintiff spoke out is

356 important. The record clearly indicates that after

357 Paschal made his presentation on salaries, he opened the

358 meeting to discussion. According to one fireman in

359 attendance, “[i]t was just an open, frank discussion, ‘If

360 you have anything on your mind, let’s get it out in the

361 open and talk about it, anything.’” Similarly, Bickel

362 testified that he thought Paschal was effectively asking

363 for “input on what we thought about anything that had to

364 do with the fire service.”

365 Bickel, 632 F.2d at 1257. Here, the summary judgment record

366 establishes that Sheriff McElveen invited officers to comment on

367 the planning and implementation of the COPS program. Victor made

368 his remarks in response to this invitation and did so only after

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369 receiving assurances from the sheriff that he would not be

370 retaliated against for his speech. In addition, the comments were

371 germane to the sheriff’s request for input on the planning and

372 implementing of the COPS program. As in Bickel, the context of

373 speech within a response to an invitation weighs in favor of

374 protecting the invited speaker’s right of expression.

375 IV

376 Because this matter is before us following a grant of summary

377 judgment, we make no intimations regarding the correctness vel non

378 of either party’s factual assertions or the final outcome after a

379 trial on the merits. See Rankin v. Klevenhagen, 5 F.3d 103, 108

380 (5th Cir. 1993). For the reasons assigned, the summary judgment of

381 the district court is REVERSED and the case is REMANDED for further

382 proceedings.

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