United States Court of Appeals
Fifth Circuit
F I L E D
May 13, 2003
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
_______________________________ Clerk
No. 02-20061
_______________________________
ALLEN E. THARLING,
Plaintiff - Appellant,
VERSUS
CITY OF PORT LAVACA,
Defendant - Appellee.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
__________________________________________________
Before: DAVIS, CYNTHIA HOLCOMB HALL*, and EMILIO M. GARZA,
Circuit Judges.
HALL, Circuit Judge:
Allen Tharling appeals the district court’s grant of
judgment as a matter of law in favor of the City of Port Lavaca
(“the City”). Tharling was terminated from his position as
police chief following a series of events that included
Tharling’s investigation of possible misconduct on the part of
both the City Council and the City’s Chief Building Official, and
a confrontation between Tharling and the City Manager. Tharling
brought suit against the City, alleging violations of the First
*
U.S. Circuit Judge of the Ninth Circuit, sitting by
designation.
Amendment and the Texas Whistleblower Act. After Tharling had
presented his evidence to the jury, the district court granted
the City’s motion for judgment as a matter of law as to both
claims. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
we AFFIRM.
FACTS
The City hired Tharling as its police chief in 1994. In
late 1999, Tharling began to investigate allegations that members
of the City Council were meeting and taking action without a full
quorum present and without notice to the public, in violation of
the Texas Open Meetings Act, Tex. Gov’t Code § 551.001 et seq.
Tharling’s investigation was the subject of “common gossip”
around City Hall.
Barbara Gibson became Acting City Manager in November 1999.
Approximately one month later, Tharling informed both Gibson and
then-Mayor Tiney Browning1 that he believed several members of
the City Council had violated the Opening Meetings Act. At this
time, Gibson suggested that Tharling establish a police
department policy whereby investigation of public officials would
be handled by an external agency. Despite Gibson’s suggestion,
Tharling continued his investigation. On June 12, 2000, Tharling
submitted a report to the Attorney General alleging that the City
1
In May 2000, Alex Davila replaced Browning as Mayor of Port
Lavaca.
2
Council had violated the Texas Open Meetings Act.
Shortly thereafter, Tharling became aware of allegations
that the Chief Building Official of the City, Ed Harrington, had
impersonated a police officer. Tharling initiated an
investigation, during which he spoke with several eyewitnesses
who had seen Harrington leave a Denny’s restaurant in Texas City,
Texas without paying, claiming that it was his prerogative as a
police officer. Subsequently, Tharling submitted a written
report regarding the Denny’s incident to Gibson. Gibson directed
Tharling to discontinue his investigation, and informed Tharling
that the matter had already been resolved.2 Shortly thereafter,
Tharling reported the Harrington incident to the Texas City
Police Department.
During this time, Ed Harrington’s wife was working as
Tharling’s secretary. On July 21, 2000, Tharling learned that
Mrs. Harrington was intercepting telephone messages related to
Tharling’s investigation of her husband. Tharling immediately
suspended Mrs. Harrington and removed her office key from her key
ring. After Mrs. Harrington filed a grievance regarding the
incident, Gibson summoned Tharling to her office. Gibson ordered
Tharling to return Mrs. Harrington’s key. Tharling refused to do
so, and informed Gibson that Mrs. Harrington was no longer his
secretary. Gibson was displeased with Tharling’s demeanor during
2
Harrington was suspended in connection with the incident.
3
this exchange, and subsequently ordered Tharling to return to her
office for further discussion. Tharling told Gibson that the
meeting would have to be postponed until the following morning
because he was feeling ill.
The next morning, Gibson presented Tharling with a
memorandum of suspension. At this time, Gibson and Tharling had
an unpleasant exchange during which Tharling referred to Gibson
as “Hitler.” At a City Council meeting on July 31, 2000, Gibson
recommended that the City Council vote to terminate Tharling’s
employment for insubordination. A unanimous City Council voted
to adopt Gibson’s recommendation. Tharling appealed, and on
August 14, 2000, five of six council members voted to reject
Tharling’s appeal.3
Tharling filed suit against the City on October 24, 2000.
The City’s motion for summary judgment was denied on December 2,
2001. The next day, a jury was empaneled and the trial began.
After the close of Tharling’s evidence, the City made an oral
motion for judgment as a matter of law as to both claims.4 The
3
The dissenting Council member, Ken Barr, testified at trial
that his vote was driven by “sympathy” for Tharling.
4
Tharling’s contention that the City’s motion for directed
verdict pertained only to the Whistleblower component of the
action is without merit. Council for the City specifically
referenced the First Amendment claim in his argument. Moreover,
the City argued that Tharling had not presented sufficient
evidence of knowledge on the part of the City Council, a
component of the First Amendment claim. Given the “liberal
spirit” with which we approach Rule 50, see Serna v. City of San
Antonio, 244 F.3d 479, 481-82 (5th Cir. 2001), this was more than
4
court granted the motion, and entered judgment on December 10,
2001. This appeal timely followed.
STANDARD OF REVIEW
We review de novo a district court’s ruling on a motion for
judgment as a matter of law. Anthony v. Chevron USA, Inc., 284
F.3d 578, 583 (5th Cir. 2002). Under this standard, we will
affirm a directed verdict only if, viewing the evidence presented
at trial in the light most favorable to the non-movant, “there
is no legally sufficient evidentiary basis for a reasonable jury”
to enter a contrary verdict. Id. at 582-83 (quoting Fed. R. Civ.
P. 50(a)(1)).
THE FIRST AMENDMENT CLAIM
A First Amendment retaliation claim has four elements: (1)
the plaintiff must suffer an adverse employment decision; (2) the
plaintiff’s speech must involve a matter of public concern; (3)
the plaintiff’s interest in commenting on matters of public
concern must outweigh the defendant’s interest in promoting
efficiency of the public services it performs; and (4) the
plaintiff’s speech must have substantially motivated the
defendant’s action. Harris v. Victoria Indep. Sch. Dist., 168
F.3d 216, 220 (5th Cir. 1999). The City argued in its motion for
judgment as a matter of law that Tharling’s evidence was
insufficient to prove the fourth requirement -- a requisite
sufficient basis for the district court to rule on both claims.
5
causal relationship between Tharling’s speech and his subsequent
termination.
Where, as here, an action against a municipality is premised
on 42 U.S.C. § 1983, “direct liability is appropriate only when
an injury is inflicted by lawmakers or those whose edicts and
acts may fairly be said to represent official policy.” Worsham
v. Pasadena, 881 F.2d 1336, 1339 (5th Cir. 1989) (citing Monell
v. City of New York Dep’t of Social Services, 436 U.S. 658, 694
(1978) (internal quotation marks omitted). Accordingly, a
reasonable jury could not return a verdict in Tharling’s favor
unless he presented evidence that an official policy-making
authority rendered an adverse employment decision against him,
and that such decision was substantially motivated by Tharling’s
speech on matters of public concern.
The existence of official policymaking authority is a
question of law to be decided by the court. Worsham, 881 F.2d at
1340 n. 8. The Port Lavaca charter provides that “[t]he chief of
police shall be appointed or removed by the City Manager with the
approval of [sic] two-thirds majority of the council.” Pursuant
to the city charter, while the City Manager had authority to
“remove” Tharling, removal could not become final until approved
by the City Council. Thus, the City Council was the final
policymaker for purposes of Tharling’s termination. See Worsham,
881 F.2d at 1340-41 (holding that local law providing for
6
“meaningful review” of employment decisions by the City Council
renders the City Council the final policymaker).5
Because the City Council is the relevant policymaking
authority, Tharling’s First Amendment claim rests on whether the
City Council’s July 31, 2000 termination vote was substantially
motivated by Tharling’s free speech activities.6 The City
contends that Tharling’s evidence was insufficient to permit a
reasonable jury to reach this conclusion. We agree.
At trial, Tharling presented only two pieces of evidence
relevant to whether the City Council was aware, prior to July 31,
2000, that he had made allegations of misconduct on the part of
either Ed Harrington or the City Council itself. First,
Tharling, elicited testimony from Gibson that Tharling’s
allegations against the City Council were the subject of “common
gossip” around City Hall. Port Lavaca City Council members,
however, work full-time private sector jobs and rarely enter City
5
Tharling’s argument that Gibson was an “agent” of the City
Council is without merit. The Supreme Court has explicitly held
that vicarious liability is “incompatible with the causation
requirement set out on the face of § 1983.” City of St. Louis v.
Praprotnik, 485 U.S. 112, 122 (1988).
6
Tharling also contends that the City Council’s August 14,
2000 denial of appeal is an actionable “adverse employment
decision.” However, Tharling’s argument is foreclosed by the
principle that an employee cannot place himself in a better
position as a result of exercising his right to free speech than
he would have been in if he had not spoken. See Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285 (1977)
(articulating this principle in the context of a refusal to
rehire).
7
Hall during working hours. Thus, the connection between “gossip”
and actual knowledge on the part of the City Council is tenuous,
at best. Gibson’s testimony was therefore insufficient to permit
a reasonable juror to conclude that City Council members were
aware of Tharling’s allegations prior to their termination vote.
In addition, Tharling testified that he met with an unnamed
City Council member in 1999 and “went through some of the issues
with him of what some of the witnesses’ complaints were.”
Tharling further testified that, following this discussion,
Gibson advised Tharling that the City Council was interested in
creating an ordinance that would prohibit the police department
from investigating public officials. For the purpose of a motion
for judgment as a matter of law, we assume the veracity of both
contentions. However, neither Tharling’s role in an
investigation nor his desire to continue an investigation is
“speech” within the meaning of the First Amendment. Gillum v.
City of Kerrville, 3 F.3d 117, 121 (5th Cir. 1993). Notice to
the City Council that Tharling, the City’s police chief, was
conducting an investigation is not tantamount to notice that
Tharling made allegations of misconduct. Similarly, notice that
unnamed witnesses had lodged complaints against the City Council
is not tantamount to notice that Tharling himself made any
allegations. Thus, Tharling’s testimony was insufficient to
8
permit the conclusion that any members of the City Council had
notice of Tharling’s protected speech at the time of the
termination vote.
It is axiomatic that a party cannot be “substantially
motivated” by a circumstance of which that party is unaware. The
evidence presented at trial did not permit a reasonable jury to
conclude that the City Council was aware of Tharling’s
allegations against either the council itself or the City’s Chief
Building Official prior to its July 31, 2000 termination vote.
For this reason, no reasonable jury could have concluded that
Tharling’s speech substantially motivated the City Council’s
decision to terminate his employment. The district court
properly granted judgment as a matter of law in favor of the
City.
THE TEXAS WHISTLEBLOWER ACT CLAIM
In order to prevail under the Texas Whistleblower Act, a
plaintiff must demonstrate: 1) he is a public employee; 2) he
acted in good faith in making a report; 3) the report involved a
violation of law by an agency or employee; 4) the report was made
to an appropriate law enforcement authority; and 5) he suffered
retaliation. Duvall v. Texas Dep’t of Human Services, 82 S.W.3d
474, 478 (Tex. App. 2002); Tex. Gov’t Code § 554.002. The
parties in the instant case do not dispute that a reasonable jury
could conclude that Tharling was a public employee who reported a
9
violation of law. Similarly, the City does not contend that
Tharling acted in bad faith. Thus, we address only whether
Tharling’s reports were directed to appropriate law enforcement
authorities and, if so, whether Tharling experienced retaliation
as a consequence of such reports.
1. “Appropriate Law Enforcement Authority”
The Texas Whistleblower Act was amended in 1995 to define
“appropriate law enforcement authority” as a government official
or government entity that “an employee in good faith believes is
authorized to regulate under or enforce the law alleged to be
violated in the report or to investigate or prosecute a violation
of the criminal law.” Tex. Gov’t Code § 544.002(b).7 Otherwise
stated, the Act requires Tharling to show that “he honestly
believed he was reporting the perceived violation to an authority
within an entity which could regulate under or enforce the law in
issue or investigate or prosecute a criminal offense and,
moreover, that this belief was objectively reasonable.” Duvall,
82 S.W.3d at 480.
In the “appropriate law enforcement authority” inquiry, “the
particular law the public employee reported violated is critical
7
Prior to 1995, the Act did not define “appropriate law
enforcement authority” and caselaw supplied a broad definition.
See Castaneda v. Texas Dep’t of Agriculture, 831 S.W.2d 501, 504
(Tex. App. 1992) (“any entity with the capacity through legal
process or otherwise to take remedial action”). As noted in
Duvall, Castaneda and other pre-1995 cases have been superceded
by the amended Act. Duvall, 83 S.W.3d at 479.
10
to the determination.” Tex. Dep’t of Transp. v. Needham, 82
S.W.3d 314, 320 (Tex. 2002). Tharling alleges that he was
retaliated against for reporting Ed Harrington’s alleged
impersonation of a police officer and for reporting the City
Council’s alleged violations of the Texas Open Meetings Act, Tex.
Gov’t Code § 551.001 et seq. The City is entitled to judgment as
a matter of law unless a Tharling reported one or both of these
allegations to an appropriate law enforcement authority.
Tharling argues that he reported violations of the Texas
Open Meetings Act to Gibson, former Mayor Tiney Browning, and the
Attorney General. Therefore, we must decide whether Tharling
presented evidence that he reasonably believed that one or more
of these parties had power to regulate, enforce, investigate or
prosecute under the Texas Open Meetings Act.
The Open Meetings Act provides for both civil and criminal
penalties. See Tex. Gov’t Code § 551.142 (an “interested person”
may bring an action to enjoin violations of the Act); Tex. Gov’t
Code § 551.144 (knowing violation by a member of a governmental
body is a criminal offense). With respect to the civil
provisions, the statute is somewhat unusual in that it permits
virtually any “interested party” to bring an action to enjoin
violations. Tex. Gov’t Code § 551.142. Texas courts have
adopted “an extremely broad interpretation regarding who
constitutes an ‘interested person.’” Matagorda County Hosp. Dist.
v. City of Palacios, 47 S.W.3d 96, 102 (Tex. App. 2001).
11
However, the Texas Whistleblower Act requires that an
“appropriate law enforcement entity,” be “a part of a state or
local governmental entity or of the federal government.” Tex.
Gov’t Code § 554.002. Thus, the fact that Gibson and the mayor
could enforce the Open Meetings Act in their personal capacities
does not render them “appropriate law enforcement entities.” The
Act’s criminal provision, similarly, does not empower a City
Manager or mayor to regulate, enforce, investigate or prosecute.
Tharling presented no evidence at trial that he had a reasonable
belief to the contrary. On appeal, he merely asserts that Gibson
had disciplinary authority. This assertion is entirely
irrelevant to whether Tharling reasonably believed that Gibson
had power to regulate, enforce, investigate or prosecute
violations of the Open Meetings Act. See Needham, 82 S.W.3d at
320 (“law enforcement authority” does not encompass persons or
entities who merely have the power to discipline employees for
illegal conduct).
Although neither Gibson nor former mayor Tiney Browning are
law enforcement authorities, the Attorney General’s office is
empowered to investigate and prosecute violations of the Act.
Accordingly, the report to the Attorney General was properly made
to “an appropriate law enforcement authority” and can serve as
the basis for a claim under the Texas Whistleblower Act.
In addition to the alleged Open Meetings Act violation,
Tharling also made several reports regarding illegal conduct on
12
the part of the City’s Chief Building Official, Ed Harrington.
Tharling reported Harrington’s alleged impersonation of a police
officer to Gibson, the Texas City police, and the Texas Board of
Plumbing Examiners. As discussed above, Gibson’s authority to
discipline does not render her a law enforcement authority. See
Needham, 82 S.W.3d at 320. Similarly, there is no evidence that
the Board of Plumbing Examiners has authority to regulate,
enforce, investigate or prosecute unauthorized impersonations of
police officers. By contrast, however, the Texas City Police
Department is charged with enforcing the law in Texas City, where
the alleged violation occurred. Thus, the Texas City Police
Department is an appropriate law enforcement authority within the
meaning of the Texas Whistleblower Act.
2. Retaliation
Having determined that both Tharling’s report to the
Attorney General and his report to the Texas City Police
Department were reports to appropriate law enforcement
authorities, we must determine whether the City took adverse
personnel action against Tharling as a result of either report.
While the Texas Whistleblower Act does not explicitly require an
employee to prove a causal link between the report and the
subsequent discrimination, the Texas Supreme Court has held that
plaintiff must prove causation by a preponderance of the
evidence. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex.
13
2000).
Tharling asserts that his reports of misconduct on the part
of the City Council and the Chief Building Official caused the
City to retaliate by terminating his employment. Tharling
presented neither direct nor circumstantial evidence that any
City officials were aware of the report to the Attorney General
prior to his termination. However, Tharling testified that
Gibson was aware of his report to the Texas City Police
Department. Thus, the vitality of Tharling’s Whistleblower claim
depends on whether a reasonable jury could conclude that Tharling
was subject to an adverse employment action as a result of
Gibson’s knowledge of Tharling’s report to the Texas City Police
Department.
In the First Amendment context discussed supra, a City
cannot be liable for the retaliatory acts of its employees unless
those employees have final policymaking authority. However, the
Texas Whistleblower Act does not impose such a restriction on
municipal liability. See, e.g., City of San Antonio v. Heim, 932
S.W.2d 287, 293 (Tex. App. 1996) (noting that the Whistleblower
Act protects employees from, inter alia, the acts of individual
supervisors). Thus, the City’s liability could arguably be
premised on Gibson’s decision to suspend, and later to recommend
that the City Council terminate, Tharling’s employment.
However, we reject this argument for two reasons. First,
14
Tharling waived the issue of whether his suspension violated the
Whistleblower Act by failing to address it in his opening brief.
See Lockett v. EPA, 319 F.3d 678, 684 n.16 (5th Cir. 2003)
(issues not raised in the opening brief are deemed waived).
Second, although a reasonable jury could conclude that Gibson’s
recommendation was based in part on her knowledge of the Texas
City Police Department report, the City Council had the
opportunity to review the facts underlying Gibson’s
recommendation to terminate Tharling at its July 31, 2000
hearing. After doing so, the council voted to terminate Tharling
for insubordination. There is no evidence that the City Council
was aware of any reports made by Tharling to authorized law
enforcement authorities at the time it made the termination
decision. Texas courts have held in similar circumstances that
even if a recommendation to terminate was retaliatory in nature,
subsequent independent review of the facts followed by
ratification breaks the chain of causation. See Zimlich, 29
S.W.3d at 70 (citing cases).
Accordingly, there was no basis for a reasonable jury to
find a causal link between Tharling’s termination and either his
report to the Attorney General or his report to the Texas City
Police Department. The district court properly granted the
City’s motion for judgment as a matter of law as to Tharling’s
Texas Whistleblower Act claim.
15
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
16