IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-10046
_____________________
ARMANDO H. GONZALES,
Plaintiff-Appellee,
versus
DALLAS COUNTY, TEXAS, ET AL,
Defendants,
AURELIO CASTILLO and CONNIE KIRBY,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court for the
Northern District of Texas
_________________________________________________________________
May 4, 2001
Before JOLLY and DAVIS, Circuit Judges, and RESTANI* Judge.
E. GRADY JOLLY, Circuit Judge:
The district court denied qualified immunity to these
defendant-appellant Dallas County, Texas constables. They are
alleged to have discharged the plaintiff-appellee, Armando
Gonzales, in retaliation for his exercising his First Amendment
rights. We reverse the district court’s order. Although it is
*
Judge of the United States Court of International Trade,
sitting by designation.
true that Gonzales engaged in activity protected by the First
Amendment when he testified before a grand jury investigating
corruption in the constable’s department, the discharge was
objectively reasonable with regard to Gonzales’s constitutional
rights. We reach this conclusion in the light of Gonzales’s
subsequent conduct of using excessive force and because the record
demonstrates that the discharge was justified on grounds unrelated
to his First Amendment rights and would have occurred
notwithstanding his exercise of such rights.
I
A
In early 1997, Aurelio Castillo, the newly-elected Constable
of Precinct 6 of Dallas County, instructed several of his deputies,
including Armando Gonzales, to solicit “contributions” from several
bail bondsmen. The understanding, according to Gonzales, was that
the bondsmen who gave money to Castillo would receive assistance
from the constable’s department in locating and arresting bond-
jumpers. Fearing that he would be terminated if he refused to
solicit, Gonzales followed Castillo’s instructions.
By September 1997, Gonzales had become concerned about the
propriety of these contributions and reported the activity to an
assistant district attorney. The Dallas County Grand Jury then
began its investigation and subpoenaed Gonzales. When Castillo
learned of the grand jury investigation, he asked his mother to
2
persuade Gonzales to sign a statement that he had no knowledge of
solicitations from the bail bondsmen. Gonzales refused to sign,
and when Castillo confronted him personally, Gonzales said that the
prepared statement was false and that he would not perjure himself.
Gonzales testified before the grand jury, which in October 1997
returned an indictment against Castillo for the felony offense of
bribery.1
B
In mid-November, about six weeks after being indicted for
bribery, Constable Castillo learned that deputy Gonzales had been
involved in an altercation while working part-time as a uniformed
security guard at a large supermarket. The following facts are
undisputed: An unarmed man, who was shopping with his seven year
old son, shoplifted several pair of socks worth approximately $30.
While apprehending the shoplifting suspect, Gonzales drew his 9mm
semi-automatic pistol, struck the suspect on the head with his gun,
and twice sprayed the suspect in the face with pepper spray.
(Gonzales argues that such force was necessary under the
circumstances.) The Dallas City Police arrived at the scene and
took the suspect to a hospital where he was treated for his
injuries. Gonzales did not report this incident either to Castillo
or Kirby, but the supermarket manager contacted the constable’s
1
In his briefs on appeal, Castillo informed this court that he
was acquitted on the felony bribery charge following a jury trial
in February 2000.
3
office several days after the incident.
C
Chief Deputy Constable Connie Kirby was responsible for
investigating all allegations of inappropriate conduct and
submitting written findings and a recommendation regarding
disciplinary action to Constable Castillo. The supermarket manager
advised Kirby that officials from the store’s corporate office had
investigated the incident and determined that Gonzales’s conduct
(as well as that of the assistant store manager who was on duty
when the incident occurred) was inappropriate, dangerous, and
“stupid.” Specifically, they found that Gonzales had violated
store policy by employing excessive force in apprehending a
shoplifting suspect and by bragging about the incident afterwards.
The corporate office decided that neither the assistant manager nor
Gonzales should be allowed to work at the store again.
In the course of investigating this incident, Kirby
interviewed and obtained statements from Gonzales, the shoplifter,
and three store employees who witnessed the incident. Although
Gonzales contended that he had used force only because it was
necessary to defend himself, several store employees told Kirby
that Gonzales was not in danger. One employee stated that the
shoplifter “at no time tried to fight the officer or the manager.”
Another employee testified that the shoplifter was being detained
by a store employee and appeared to be trying to escape through the
4
door when Gonzales hit him. The shoplifter admitted that he was
“struggl[ing] to get loose” from a store employee but did not
attempt to harm Gonzales. The suspect also stated that he was
handcuffed and lying on the restroom floor when Gonzales sprayed
him with mace the second time.
Perhaps the most damning account that Kirby heard during his
investigation came from another assistant store manager who arrived
at work shortly after the incident. The assistant manager stated
that Gonzales approached him, telling him that he had “missed all
the excitement.” Gonzales then explained, “in a bragging manner,”
that “A man stole something from the store and tried to escape. .
. . I hit him in the head with my pistol and maced the [expletive
deleted]. When he ran to the back of the store to the restroom to
wash the mace from his eyes, I followed him in there and maced him
again.”
Chief Deputy Constable Kirby completed his investigation and
submitted a report to Constable Castillo on December 10, 1997. In
this report, Kirby suggested that Gonzales’s actions reflected a
serious lack of judgment and constituted an “unnecessary and
inappropriate use of force” because (1) the alleged offense was
minor and did not warrant the level of force that Gonzales used;
(2) by drawing the pistol, Gonzales increased the likelihood that
the suspect could become violent; (3) Gonzales easily could have
lost control of his weapon while wrestling with the suspect; and
5
(4) by using his pistol as a club, Gonzales ran the risk of having
the gun discharge in the supermarket. Moreover, Gonzales’s actions
were inconsistent with the spirit of the precinct’s “zero
tolerance” policy concerning police brutality as well as with the
rule that an officer’s weapon should be drawn only when human life
is endangered. Citing these reasons, as well as Gonzales’s prior
disciplinary problems,2 Kirby recommended that Gonzales’s
employment be terminated.
On December 12, 1997, approximately two months after being
indicted for bribery, Constable Castillo decided that Gonzales
should be discharged. In a document entitled “Notice of
Separation,” Castillo remarked that “Due to the nature of the
allegations brought upon Officer Gonzales, I do not have any faith
or confidence [in] him regarding the use of unnecessary . . .
force.”
D
Gonzales not only disputes Kirby’s factual conclusions but
also raises questions about the manner in which Kirby conducted the
2
The supermarket incident was not the first problem. In
February 1997, Castillo suspended Gonzales for three days for
executing a recalled arrest warrant. During the course of this
investigation, Gonzales apparently admitted that he had not
carefully read the warrant, which had the word “recall” written
across it. Although Kirby recommended that Gonzales’s employment
be terminated, Castillo instead issued a formal reprimand and
suspended Gonzales for three days. Castillo also ordered Gonzales
to report immediately any future incident that could lead to a
complaint against the constable’s office. Gonzales did not contest
this disciplinary action.
6
investigation. In his account of the incident, Gonzales contends
that the suspect “lowered his head and was attempting to knock me
down by physically striking me with his head and positively causing
bodily injury to me.” He argues that he used force only because it
was necessary to defend himself and arrest the shoplifter.
Although Gonzales was interviewed by Kirby during his investigation
of the incident, he contends that he was not allowed to furnish
evidence supporting his interpretation of the events at the
supermarket. His argument may be summarized as follows.
First, Kirby did not interview Stephen Bynum, the assistant
store manager who was involved in the incident. Bynum testified in
an affidavit that the shoplifter struggled with both of them.
Bynum stated that they were standing between the suspect and the
door and that Gonzales pulled his pistol only after the suspect
began moving quickly toward him.
Second, according to Gonzales, Kirby interviewed Sergio
Alvarado, a produce clerk who witnessed the incident, but ignored
any statements that supported Gonzales’s account. In an affidavit,
Alvarado stated that the suspect charged at Gonzales with his head
down and began swinging his right arm: “From my view it looked like
he was going to strike Mr. Gonzales in the face.” Alvarado claims
that he told Kirby about the man charging at Gonzales, but when
Kirby prepared a written statement for him to sign, Kirby omitted
the part about the suspect’s attempt to strike Gonzales.
7
Third, Gonzales faults Kirby for not investigating the
shoplifting suspect’s criminal record. If Kirby had done so,
Gonzales argues, he would have learned that the suspect had a prior
conviction for resisting arrest and attempting to strike a police
officer.
Fourth, Gonzales was not allowed to interrogate or confront
witnesses whose statements were used to support the decision to
terminate his employment.
In sum, Gonzales argues that a more complete investigation
would have revealed that he had not used unnecessary force. In his
view, such force was necessary considering that the suspect was
attempting to injure Gonzales.
E
Gonzales did not supinely accept his discharge. A few days
later, he filed a grievance with the Dallas County Civil Service
Commission, which has the authority to review the discipline and
discharge of county employees. On January 26, 1998, the Commission
ordered that Gonzales be reinstated as deputy constable with full
back pay, all benefits, and no break in service. The Commission’s
exact reasons for reinstating Gonzales are not clear. It appears,
however, that the commission found that the pre-termination hearing
did not comply with departmental or county regulations. Although
Gonzales was reinstated with full back pay, he argues that he has
not been reimbursed for his attorney’s fees or for certain
8
consequential damages, such as his mental anguish and the loss of
part-time employment as a security guard. Moreover, Gonzales
claims that he has been “constantly harassed” since his
reinstatement. He alleges, for example, that Castillo and Kirby
have given him an excessive case load and extremely negative
performance evaluation reports. Throughout 1998 and 1999, Gonzales
continued to file grievances with the Civil Service Commission.
II
In April 1998, Gonzales filed the instant complaint under 42
U.S.C. § 1983 seeking damages against Dallas County, Constable
Aurelio Castillo, Chief Deputy Constable Connie Kirby, and Deputy
Constable Alex Garcia, who had assisted Kirby in his investigation
of the shoplifting incident.3
Gonzales’s principal allegation is that the defendants
retaliated against him because he had testified against Castillo
before the grand jury. Gonzales also included claims for violating
his right to due process, conspiring to obstruct judicial
proceedings under 42 U.S.C. § 1985, violating the Texas
Whistleblower Act, and intentionally inflicting emotional distress.
In December 1999, the district court granted the defendants’
motion for summary judgment in part: (1) the due process claim
because Gonzales had no property interest in his continued
3
Gonzales has voluntarily dismissed all charges against
Garcia, and the district court has granted partial summary judgment
for Dallas County.
9
employment; (2) the section 1985 claim because there was no proof
of “class-based animus”; (3) the Texas Whistleblower Act claim
because the Act did not create a private cause of action; and (4)
the intentional infliction of emotional distress claim because such
causes of action generally cannot be sustained in the context of
employment disputes.
Thus, the only remaining claim was Gonzales’s First Amendment
retaliation claim brought under section 1983. The district court,
however, limited Gonzales’s retaliation claim to injuries arising
from his temporary discharge that lasted from December 1997 to
January 1998.
Castillo and Kirby argued that they were entitled to summary
judgment on the retaliation claim on the basis of qualified
immunity under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct.
2727, 2738, 73 L.Ed.2d 396 (1982)(“[G]overnment officials
performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not
violate clearly established . . . constitutional rights of which a
reasonable person would have known.”). The district court denied
the motion, and Castillo and Kirby now appeal. Thus, the only
issue in this appeal is whether Castillo and Kirby are entitled to
qualified immunity from suit on the First Amendment retaliation
claim.
10
III
A
Gonzales first contends that, because there are disputed
issues of fact, we lack jurisdiction over this interlocutory
appeal. We disagree.
When a public official seeks interlocutory review of an order
denying qualified immunity, this court has jurisdiction to review
the order “to the extent that it turns on an issue of law.”
Lemoine v. New Horizons Ranch & Center, Inc., 174 F.3d 629, 633-34
(5th Cir. 1999). We may therefore determine whether all of the
conduct that the district court “‘deemed sufficiently supported for
purposes of summary judgment met the Harlow standard of “objective
legal reasonableness.”’” Coleman v. Houston Indep. Sch. Dist., 113
F.3d 528, 531 (5th Cir. 1997)(quoting Behrens v. Pelletier, 516
U.S. 299, 313, 116 S.Ct. 834, 842, 133 L.Ed.2d 773 (1996)).
Consequently, on interlocutory appeal the public official must be
prepared to concede the best view of the facts to the plaintiff and
discuss only the legal issues raised by the appeal. Berryman v.
Rieger, 150 F.3d 561, 562-63 (6th Cir. 1998).
The jurisdictional question, then, is whether the record
reflects undisputed facts upon which we may make a determination of
the legal question before us: whether a reasonable public official
could have believed, in the light of clearly established law, that
the specific conduct of discharging Gonzales did not violate his
11
constitutional rights.4 The mere existence of some factual dispute
is not enough to defeat this court’s jurisdiction over an
interlocutory appeal: If the disputed facts are not material to
this legal question, “the denial of summary judgment is reviewable
as a question of law.” Mendenhall v. Riser, 213 F.3d 226, 230 (5th
Cir. 2000). Because this interlocutory appeal turns on a question
of law that can be decided on undisputed material facts, we have
jurisdiction.
B
We begin our analysis by assuming that Gonzales engaged in
speech protected under the First Amendment. We will further assume
that Gonzales suffered an adverse employment action when he was
initially discharged, even though he was ultimately reinstated with
back pay by the county. See Harris v. Victoria Indep. Sch. Dist.,
168 F.3d 216, 220 (5th Cir. 1999)(listing the elements of a First
4
We emphasize that the legal question is not whether an
officer would have known, in the abstract, that an employee could
not be discharged in retaliation for protected First Amendment
activities. Instead, we must ask whether a reasonable officer
would have known that the specific conduct in issue violated the
plaintiff’s rights. See Anderson v. Creighton, 483 U.S. 635, 641,
107 S.Ct. 3034, 3040, 97 L.Ed.2d 523 (1987); Harlow, 457 U.S. at
819, 102 S.Ct. at 2739 (“Where an official could be expected to
know that certain conduct would violate statutory or constitutional
rights, he should be made to hesitate; and a person who suffers
injury caused by such conduct may have a cause of action.”). It is
not necessary that there be a prior case holding the particular
action in question unlawful, but “‘in the light of pre-existing law
the unlawfulness must be apparent.’” Petta v. Rivera, 133 F.3d
330, 334 (5th Cir. 1998)(quoting Anderson, 483 U.S. at 640, 107
S.Ct. at 3039).
12
Amendment retaliation claim).5 Assuming these points, we focus on
the principle that a public employer may escape liability by
proving that it would have taken the same adverse employment action
“even in the absence of the protected conduct.” Gerhart v. Hayes,
217 F.3d 320, 321 (5th Cir. 2000)(citing Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50
L.Ed.2d 371 (1977)).6 Thus, under the qualified immunity analysis,
the question is whether it would have been objectively reasonable
for an officer to conclude that terminating Gonzales’s employment
did not violate his rights under the First Amendment because his
November 1997 altercation with the shoplifter would have caused his
termination notwithstanding that he had testified against Castillo
before the grand jury.
Even though there are some disputes as to what happened in the
supermarket in November 1997, it is not for us to have a factual
resolution of precisely what happened in the store; instead, we
need only determine whether Castillo and Kirby, in discharging
5
Because we assume that Gonzales established the elements of
his retaliation claim, we need not address whether his prompt
reinstatement by a county administrative tribunal precludes a
finding of an adverse employment decision. Compare Benningfield v.
City of Houston, 157 F.3d 369, 377 (5th Cir. 1998), and Breaux v.
City of Garland, 205 F.3d 150, 158 (5th Cir. 2000), with Frazier v.
King, 873 F.2d 820, 824 (5th Cir. 1989).
6
As this court has made clear, First Amendment retaliation
claims are governed by the Mt. Healthy “mixed-motives” framework,
not by the McDonnell Douglas pretext analysis. See Brady v. Fort
Bend County, 145 F.3d 691, 711-12 (5th Cir. 1998); Mooney v. Aramco
Serv. Co., 54 F.3d 1207, 1216 (5th Cir. 1995).
13
Gonzales, acted in an objectively reasonable manner, with respect
to his constitutional rights, notwithstanding the conflicting
accounts of the incident. We thus look to the “employer’s
knowledge, perceptions, and policies at the time of termination.”
Board of County Comm’rs v. Umbehr, 518 U.S. 668, 685, 116 S.Ct
1342, 1352, 135 L.Ed.2d 843 (1996).
It is also worth noting that we do not require government
employers to make personnel decisions through methods that mirror
court procedures, nor do we necessarily require employers always to
resolve contradictory testimony in favor of the employee. See,
e.g., Waters v. Churchill, 511 U.S. 661, 676, 114 S.Ct. 1878, 1888,
128 L.Ed.2d 686 (1994)(plurality opinion)(recognizing that “there
will often be situations in which reasonable employers would
disagree about who is to be believed, or how much investigation
needs to be done, or how much evidence is needed to come to a
particular conclusion.”). Thus, the fact that Castillo and Kirby
may have relied on hearsay or made credibility determinations
(i.e., that the employees’ accounts of the events were more
credible than Gonzales’s) does not necessarily suggest that the
decision to terminate Gonzales’s employment was unreasonable.
We have also considered Gonzales’s argument that Kirby
carefully edited a witness’s statement in order to put the incident
in the worst possible light. One store employee, Sergio Alvarado,
has stated in an affidavit that he told Kirby that the shoplifter
14
was running toward Gonzales with his arm upraised, but Kirby did
not include this information in the written statement he prepared
for Alvarado to sign. Ultimately, we do not consider Alvarado’s
subsequent affidavit to create a disputed issue of material fact as
to whether Gonzales’s discharge was unreasonable. First, there is
no indication that it was unreasonable to give greater weight to
the several other statements than to Alvarado’s single account.
Kirby had obtained sworn statements from other witnesses who said
that Gonzales was not in danger and that the shoplifter was merely
trying to escape through the door. Second, and more important,
under established police procedures, Gonzales would not have been
justified in drawing his weapon even if the shoplifter had
attempted to strike him.
Therefore, even assuming that Kirby omitted part of Alvarado’s
testimony when preparing his written statement, we conclude that
Gonzales has presented no material evidence suggesting that Kirby’s
investigation was so incomplete, biased, or otherwise untrustworthy
that a reasonable public official would have been “made to
hesitate,” Harlow, 457 U.S. at 818-19, 102 S.Ct. at 2739, before
terminating Gonzales’s employment.
Likewise, Gonzales has presented no evidence suggesting that
Castillo’s decision to fire him was unwarranted or unusual in the
light of relevant departmental policies. On the other hand, there
is considerable undisputed evidence, as we have suggested above,
15
that Gonzales’s decision to draw his weapon on the shoplifting
suspect (even assuming that the suspect charged at Gonzales)
constituted improper conduct and was cause for termination.
Castillo and Kirby point out, with little or no contradiction from
Gonzales, that (1) in his two and a half years as a deputy
constable, Gonzales had made several questionable decisions,
including the February 1997 wrongful arrest on a recalled warrant;
(2) department policy dictates that officers should draw their
weapons only when life is threatened, and there was no evidence
that the shoplifter posed any serious danger to the store’s
employees or patrons; (3) most of the employees stated that the
suspect did not instigate the physical aggression with Gonzales;
(4) an assistant store manager told Kirby that Gonzales had bragged
about injuring the suspect; (5) the store manager informed Kirby
that she had conducted a thorough investigation and concluded that
Gonzales had used unnecessary force to subdue the shoplifter; (6)
Gonzales’s decision not to inform Kirby of the incident at the
supermarket probably violated Castillo’s direct order to inform him
of such occurrences; and (7) constables from other precincts
submitted affidavits stating that they would have terminated
Gonzales’s employment based on the information Kirby had obtained.
In the light of the record before us, we hold that a
reasonable public official would have believed that the decision to
terminate Gonzales’s employment would not “violate clearly
16
established . . . constitutional rights” because the same
employment action would have been taken even if Gonzales had not
testified against Castillo before the grand jury. Therefore,
Castillo and Kirby are entitled to qualified immunity from suit,
and the district court should have granted summary judgment to the
defendants on that basis with respect to the First Amendment
retaliation claim, which is the only claim before us in this
appeal.
IV
For the reasons set forth above, the district court erred in
denying the defendants’ motion for summary judgment on qualified
immunity grounds. We therefore REVERSE the district court’s order
denying qualified immunity and REMAND the case for further
proceedings not inconsistent with this opinion.
R E V E R S E D and R E M A N D E D.
17