Opinion
No. SA-04-CA-0412-RF.
July 6, 2005
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
BEFORE THE COURT is Defendants' Motion for Partial Summary Judgment Dismissing Claims Against Leon Evans Based on Qualified Immunity (Docket No. 36), filed on December 6, 2004, along with responsive and reply briefs. Also before the Court is Defendants' Motion for Partial Summary Judgment Dismissing Sections 1983, 1985, and 1986 Claims Against CHCS and Leon Evans (Docket No. 37), filed on December 10, 2004, along with responsive and reply briefs. Finally, the Court has before it Defendants' Motion for Summary Judgment (Docket No. 63), along with responsive and reply briefs. The Court held a hearing on June 1, 2005. After due consideration, the Court is of the opinion that the Motions for Summary Judgment must be GRANTED IN PART AND DENIED IN PART.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Ricardo Martinez filed his original petition in state court on April 2, 2004, alleging that his former employer, Defendant Center for Health Care Services ("CHCS"), wrongfully terminated him. Plaintiff contends that his termination was in violation of various constitutional rights and his right to due process. In his First Amended Original Petition, Plaintiff asserts claims brought pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 1988 to vindicate rights protected by the First and Fourteenth Amendments. Plaintiff has abandoned several state claims asserted in his original state court pleadings, but does continue to assert a claim for attorney's fees. Plaintiff has also abandoned claims against other "nominal defendants," including Dr. Robert Jimenez, Chairman of the Board for CHCS and eight trustees of CHCS. (Docket No. 29, at 2).
Id. § 38.001.
The facts giving rise to Plaintiff's claims are as follows. On August 12, 2002, while employed by Defendant CHCS, Martinez addressed the Bexar County Commissioner's Court about CHCS's operations and priorities. Following his address of the Commissioner's Court, Plaintiff was counseled by his supervisors that any representations made to the Commissioner's Court should be factual in nature and that CHCS would provide him with facts to support such representations.
On July 1, 2003, Plaintiff again addressed the Commissioner's Court, raising issues on behalf of the League of United Latin American Citizens (LULAC) and members of a statewide employee union. Plaintiff raised four areas of concern: (1) the provision of services to children and adolescents at local treatment centers; (2) administrative overhead; (3) outreach to residents on the south side of San Antonio; and (4) continuity of care.
Plaintiff made several specific, factual statements about CHCS to the Commissioners Court. He stated that there was a 60 percent "no-show" rate at the CHCS and that this meant that only two out of eight patients with appointments were being seen by CHCS. Plaintiff also stated that CHCS had failed to comply with a state legislative mandate for the 2003 fiscal year ("FY2003") that CHCS utilize no more than ten percent of its revenue for administrative costs. He also criticized the closure of one CHCS facility, the Austin Street Clinic, suggesting that the stated reason for its closure — that there was mold contamination in the facility — was a subterfuge for the actual reason.
Following Plaintiff's remarks to the Commissioner's Court in July 2003, CHCS Executive Director Leon Evans researched the factual bases for Plaintiff's statements with his management team. Finding the statements made by Plaintiff to be unverifiable or contrary to the facts, Defendant Evans terminated Plaintiff's employment on July 23, 2003.
Plaintiff alleges that CHCS terminated him in retaliation for making true statements and on the basis of his political views or for representing his fellow employees' interests. Plaintiff claims that CHCS engages in a custom or policy of encouraging its officers to chastize and discipline persons who voice public concerns about CHCS. Plaintiff alleges that CHCS encourages retaliation directly and by failing to discipline officers when such retaliation occurs. Plaintiff also claims that CHCS has an unofficial policy of manipulating investigative records and destroying documents likely to expose its directors and officers to civil liability.
Defendants moved to dismiss under FED. R. CIV. P. 12(b)(6) or for more definite statement on June 7, 2004. The Court heard these motions on September 28, 2004 and denied the motion to dismiss, ordering Plaintiff to file a more definite statement of his claims against Defendants by October 8, 2004. (Docket Nos. 21, 22). After the Court granted two extensions, Plaintiff filed an amended pleading on October 21, 2004. (Docket No. 29). On December 1, 2004, Defendants again moved to dismiss Plaintiff's state libel claim based on sovereign immunity and to dismiss Plaintiff's Section 1985 and 1986 claims under the intra-corporate conspiracy doctrine for failure to state a claim upon which relief could be grated. On May 12, 2005, the Court found that Plaintiff had failed to plead libel claims and claims under 42 U.S.C. §§ 1985 and 1986 and granted Defendants' motion, dismissing these claims (Docket No. 77).
On December 6 and 10, 2004, Defendants moved for summary judgment on various claims Plaintiff asserts against them in his amended pleading. (Docket Nos. 36, 37) Specifically, Defendants move for summary judgment on Plaintiff's claims against Leon Evans based upon qualified immunity (Docket No. 36). Defendants also move for summary judgment on Plaintiff's claims under 42 U.S.C. §§ 1983, 1985, and 1986 (Docket No. 37). After additional discovery, Defendants again moved for summary judgment on all claims on March 28, 2005. (Docket No. 63).
After the Court granted two extensions of time and leave to exceed the page limit, Plaintiff filed his responsive pleading on January 10, 2005. On March 28, 2005, Defendants filed an additional motion for summary judgment, bringing to the Court's attention additional evidence and arguments. (Docket No. 63). Plaintiff sought and received three extensions of time and responded on May 6, 2005. The Court turns its attention to the remaining claims in the context of Defendants' motions for summary judgment.
DISCUSSION
I. Motion for Partial Summary Judgment as to Claims Against Leon EvansA. Summary Judgment Standard
Summary judgment is appropriate if, after adequate time for discovery, there is no genuine issue of material fact and a party is entitled to judgment as a matter of law. A dispute regarding a material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict in favor of the non-moving party. The party seeking summary judgment carries the burden of initially demonstrating the absence of a genuine issue of material fact. This burden does not require the moving party to produce evidence showing the absence of a genuine issue for trial; instead, the moving party can satisfy its burden simply by pointing out to the district court that there is no evidence to support the non-moving party's case.
FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Stahl v. Novartis Pharmaceuticals Corp., 283 F.3d 254, 263 (5th Cir. 2002).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Celotex, 477 U.S. at 325.
Once the moving party has met its burden, the non-movant must "set forth specific facts showing that there is a genuine issue for trial." The non-moving party must also describe the precise manner in which the evidence he sets forth supports his claims. If the non-moving party fails to set forth specific facts to support an essential element of his claim and one on which that party will bear the burden of proof, then summary judgment is appropriate. Even if the non-movant brings forth evidence in support of his claim, summary judgment is nonetheless appropriate "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted."
See Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1996).
Celotex, 477 U.S. at 323.
Liberty Lobby, 477 U.S. at 249-50.
B. Qualified Immunity of Defendant Evans
As noted above, the Court previously dismissed Plaintiff's claims under 42 U.S.C. §§ 1985 and 1986. Defendants move for partial summary judgment as to Plaintiff's claims against Leon Evans asserting the defense of qualified immunity. Qualified immunity shields government officials from civil liability as long "as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." As recently stated by the Fifth Circuit, the first step in the two-part qualified immunity analysis is determining whether Plaintiff has successfully alleged facts showing the violation of a statutory or constitutional right by state officials. If the Plaintiff's allegations, taken as true, establish a violation of a clearly established right, then the Court moves on to the next step. Without an established right, qualified immunity is appropriate. However, if the Plaintiff alleges a violation, the Court "must decide whether the conduct was objectively reasonable in light of the clearly established law at the time of the incident."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); Rutland v. Pepper, 404 F.3d 921, 923 (5th Cir. 2005);
Rutland, 404 F.3d at 923 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). There is some variation among recent Fifth Circuit decisions as to how the two prongs of this analysis are framed. For example, in Alexander v. Eeds, 392 F.3d 138, 144 (5th Cir. 2004) and Hernandez v. Tex. Dep't of Protective Reg'y Servs., 380 F.3d 872, 879 (5th Cir. 2004), the Fifth Circuit included in the first prong the "clearly established" element and stated that the second prong was whether the official's conduct was objectively reasonable in light of the law at the time. However, in Branton v. City of Dallas, the Fifth Circuit stated the "clearly established" element itself as the second prong of the test. 272 F.3d 730, 744 (5th Cir. 2005), and made no reference to objective reasonableness of the official's actions. The Court does not find these varying articulations to be in significant tension and discusses them together in its application below.
Eeds, 392 F.3d at 144.
Id.; Hernandez, 380 F.3d at 879.
Eeds, 392 F.3d at 144; Hernandez, 380 F.3d at 879.
Defendants assert that the alleged wrongful acts against Plaintiff were undertaken within the scope of his discretionary authority and within his official duties as Executive Director of Defendant CHCS. Defendants also argue that the pleadings and un-controverted evidence fail to show that Defendant Evans's conduct violated Plaintiff's constitutional rights or that it was objectively unreasonable in light of the clearly established law. As a result, they argue that Defendant Evans is entitled to assert qualified immunity and that summary judgment should be granted on Plaintiff's claims against him.
Plaintiff responds, arguing the Defendants waived the qualified immunity defense by failing to assert the defense in their amended answer filed in November 2004. Plaintiff urges the Court to find that Defendants thus procedurally waived the defense. This request is curious, given the failure of Plaintiff to timely file any of his required responsive pleadings. Plaintiff asks the Court to hold Defendants to a strict set of procedural rules, but repeatedly asks that they be set aside for him. The Court eschews dismissal of claims or waiver of defenses on purely procedural grounds, preferring to reach the merits of every claim or defense before it. The Court believes that this is the most appropriate way to ensure that justice is done in every case. For these reasons, the Court declines to grant Plaintiff's request to find that Defendants have waived their asserted defense.
1. Whether Plaintiff Has Alleged A Violation of A Clearly Established Constitutional Right
Defendants argue that the claims pleaded against Defendant Evans do not state a claim for violation of a clearly established right. Defendants also argue that the evidence before the Court does not show that Evans violated any of Plaintiff's clearly established rights and argue that Plaintiff has failed to show that Evans's conduct violated a constitutional right as a matter of law.
Plaintiff responds, arguing that he has alleged the appropriate elements of a First Amendment retaliation claim under 42 U.S.C. § 1983. Plaintiff's amended complaint reveals allegations that Defendants retaliated against him for statements made about issues of concern to the people of San Antonio — particularly Latin American residents — and that this retaliation for protected, First Amendment speech resulted in his termination from employment with CHCS. Plaintiff alleges that Defendants acted in an unreasonable and malicious manner in terminating him and that they did so in violation of numerous constitutional rights. Further, Plaintiff alleges that these actions were undertaken in bad faith, with the intent of suppressing protected speech. The amended complaint also alleges that Defendant CHCS engages in a policy or practice of suppressing speech by its employees on matters of public concern and that his termination was an example of such a policy. Plaintiff alleges that the issues of public concern about which he spoke were important and outweighed any interest that CHCS had in suppressing the dialogue.
The Court is thus faced with a threshold question. It must first inquire whether the facts as alleged show the officer's conduct violated a clearly established constitutional right. As the Fifth Circuit described the analysis in Alexander v. Eeds, the standard for First Amendment retaliation claims is a four-part test, asking whether
Saucier v. Katz, 533 U.S. at 201 ("This must be the initial inquiry."); Siegert v. Gilley, 500 U.S. 226, 232 (1991); Eeds, 392 F.3d at 144.
(1) the plaintiff suffered an adverse employment decision,
(2) the plaintiff's speech involved a matter of public concern,
(3) the plaintiff's interest in speaking outweighed the governmental defendant's interest in promoting efficiency, and
(4) the protected speech motivated the defendant's conduct.
Eeds, 392 F.3d at 144; Kinney, 367 F.3d at 356; Lukan v. N. Forest ISD, 183 F.3d 342, 346 (5th Cir. 1999).
Accepting all of Plaintiff's allegations as true as it must for the purposes of the first prong of the qualified immunity analysis, the Court finds that Plaintiff has alleged a First Amendment retaliation claim against Defendants. It is undisputed that a public employee has the right to speak truthfully on non-confidential matters of public concern without retaliation by his public employer. Further, the parties do not dispute whether this right as applied to the Plaintiff's speech was clearly established. Because such a claim could be made out upon a favorable view of the allegations before it, the Court moves on to the next step in the sequential qualified immunity analysis, asking whether Defendant Evans's conduct was objectively reasonable in light of the clearly established law at the time.
See Pickering, 391 U.S. at 570.
2. Whether the Defendant's Conduct Was Objectively Reasonable
Under the second prong of the qualified immunity analysis, the Court must ask whether Defendant Evans's conduct was objectively reasonable, given the clearly established standards existing at the time Plaintiff was terminated. To do this, the Court will examine the summary judgment evidence submitted by the parties in light of the four-part First Amendment retaliation test articulated above. Applying this test, if the undisputed facts before the Court show that Defendant Evans's conduct was objectively reasonable, then Evans is entitled to summary judgment on the issue on qualified immunity grounds. However, if the undisputed facts show that Evans's conduct was objectively unreasonable or if the material facts are in dispute, then summary judgment is not appropriate and Defendants' motion for summary judgment must be denied.
E.g., Eeds, 392 F.3d at 144.
Turning to the parties' contentions and the evidence before it, the Court finds that, of the four elements that made up a First Amendment retaliation claim, only one element is at issue here. As the Plaintiff correctly notes in his initial response, Defendants do not deny that Plaintiff was terminated, which is an adverse employment action under Johnson's first prong. Defendants also do not dispute that Plaintiff's speech involved matters of public concern and that this speech was the reason for his termination. When there is no dispute about one or more elements of the test, the Court correctly focuses on the portions over which there is disagreement.
As the Court notes above, and as recently described by the Fifth Circuit in Johnson v. Louisiana, "to prove a First Amendment claim under § 1983 a plaintiff must show that (1) he suffered an adverse employment action, (2) his speech involved a matter of public concern, (3) his interest in commenting on matters of public concern outweighed the government employer's interest in promoting efficiency, and (4) his speech motivated the adverse employment action." 369 F.3d 826, 830 (5th Cir. 2004). Parties refer to this as the Johnson test — despite its previous articulation — and the Court adopts this usage.
See Eeds, 392 F.3d at 144; Johnson, 369 F.3d at 831.
Thus, the sole question for the Court is whether Plaintiff's interest in commenting on matters of public concern outweighed Defendant Evans's interest in promoting efficiency in the operations of CHCS. As the Fifth Circuit has stated, this analysis is referred to as the " Pickering balancing test," weighing a plaintiff's First Amendment rights on the one hand against the interest of the State as an employer in promoting the efficiency of the public services it performs through its employees, on the other. The test "recognizes as pertinent considerations whether the statement . . . interferes with the regular operation of the enterprise." The Fifth Circuit further instructs that the employee's statement is not to be considered in a vacuum and that the manner, time, and place of the employee's expression are relevant, as is the context in which the dispute arose. Additionally, the Fifth Circuit has recently stated that whether an employee's speech is true or false "plays no role in the determination of whether the speech concerned a matter of public interest." Of course, the truth or falsity of statements regarding matters of public concern could certainly be relevant for purposes other than determining whether a public concern is implicated.
Eeds, 392 F.3d at 146 (quoting Rankin v. McPherson, 483 U.S. 378, 388 (1987)); Pickering, 391 U.S. at 570-73.
Id.
Victor v. McElvin, 150 F.3d 451, 457 (5th Cir. 1998); Rankin, 483 U.S. at 388; Connick v. Myers, 461 U.S. 138, 152-53 (1983).
Salge v. Edna Indep. Sch. Dist., 2005 WL 1253868, at *3 (5th Cir.).
As set forth above, Plaintiff was terminated because of comments he made to public meetings of the Bexar County Commissioner's Court on August 12, 2002, and July 1, 2003. After the August 2002 incident, Defendant Evans counseled Plaintiff and informed him that if he wished to address the Commissioner's Court again in the future, CHCS would make factual information available to him to support his concerns.
In his statements to the Commissioner's Court at the July 2003, Plaintiff addressed four main areas of concern described above. Defendants took issue with a few statements in particular. One such statement was that CHCS spent more than an appropriate percentage of its revenues on administrative overhead and recent executive salary increases. Plaintiff also stated that CHCS experienced a 60 percent patient "no-show" rate following the closure of various CHCS treatment clinics and suggested that this figure was evidence of the Defendants' inadequate handling of services to the community. Plaintiff also told the Commissioner's Court that CHCS experienced problems with continuity of care and complained that CHCS did not adequately meet the needs of San Antonio residents living on the city's south side.
Defendants worried that Plaintiff's critical comments would harm CHCS, after it was clear that Plaintiff's comments had an affect on Commissioners present at the meeting. Defendants were concerned because Plaintiff had been counseled after his first statement to the Commissioner's Court that factual information would be available to him. Defendants worried that the comments would cast a negative light on CHCS operations and jeopardize CHCS future funding. Indeed, the critical comments triggered an investigation by the Commissioners into CHCS operations, including several of the issues raised by Plaintiff in his July 1, 2003 comments.
Def.'s Supp. (Docket No. 67), at 2; Ex. A 20:14 through 20: 21; F 18:25 through 30:3.
Ex. A 19:8 through 21:10.
Ex. F 27:5 through 30:3.
Following the meeting, Defendant Evans obtained a transcript of Plaintiff's statements and, with his management team, determined that a few of these factual statements were not supportable on the basis of information available to them. As a result, the team found Plaintiff's statements before the Commissioner's Court to be untrue and Evans subsequently terminated Plaintiff for making the statements. Defendants argue that this treatment was reasonable and does not represent a violation of Plaintiff's constitutional rights.
Plaintiff responds that all of the statements he made were either factually accurate or were a statement of his personal opinion about CHCS services or other aspects of its operations. He also argues that Defendants produce no evidence showing that any of his statements were false. Plaintiff characterizes Defendants' arguments related to the truth of his statements to the Commissioner's Court as "a smokescreen for [their] bad faith in terminating [him]." Plaintiff also argues that Defendants fail to show, or even argue, that his statements resulted in harm to CHCS in terms of lost efficiency or other harm. Plaintiff argues that his speech caused no impact to CHCS's operations and, under the Fifth Circuit's standards set forth in cases like Kennedy v. Tangipahoa Parish Library Board, his interest in speaking clearly outweighed any possible interest CHCS had in preventing him from doing so. Plaintiff also objects to Defendants' characterization of their actions as reasonable under the circumstances.
Plf.'s Resp. at para. 17.
224 F.3d 359, 378 (5th Cir. 2000) (was the statement ". . . (1) likely to generate controversy and disruption, (2) impede the department's general performance and operation, and (3) affect working relationships necessary to the department's proper functioning[?]").
Defendants reply, arguing that under any account of the facts before the Court — including Plaintiff's — Defendant Evans's assessment of the situation and actions were reasonable and that he is entitled to qualified immunity as a result. Defendants specifically address Plaintiff's statement regarding the CHCS's alleged "no-show" rate of 60 percent. They argue that this representation was simply not factual, submitting evidence compiled in support of this contention. Defendants argue that even accepting Plaintiff's sources of information, the 60 percent figure was still inaccurate and led to a negative impression in the minds of the listeners. Defendants submit evidence that the misinformation created by this alleged falsehood generated significant controversy, requiring CHCS management to temporarily cease the administration of services and respond to Plaintiff's allegations. They also submit evidence that the alleged misrepresentations generated controversy and impacted CHCS funding.
Def.'s Reply at 5; Ex. E 55:3 through 56:3.
Def.s' Reply at 3; Ex. A 19:2-21:10; 51:8-12; 59:16-23; Ex. B 54:12-23; Plf.'s Ex. B pp. 4-5.
In a supplement to their motion for summary judgment on qualified immunity, Defendants also submit evidence that Plaintiff made statements about CHCS administrative costs that were not accurate. Defendants argue that Plaintiff misrepresented that there was a legislative mandate for FY2003 requiring that CHCS utilize only 10 percent of its revenue for administrative costs and that Plaintiff wrongfully asserted that CHCS was not complying with the law. Defendants argue that the undisputed facts show that Evans terminated Plaintiff because of Plaintiff's misrepresentations to the Commissioner's Court and submit evidence that the statements jeopardized the mission of CHCS to serve the mentally ill. As a result, Defendants argue that Evans acted reasonably in terminating Plaintiff in response to the damage caused by his allegedly untrue public statements.
Docket No. 67, at 2; Ex. F 24:18 through 26:23; Ex. H CHCS 1104 para. 10 (stating that 14% of revenue may be used for administrative costs), CHCS 1121 (showing actual rate of 13.83% indirect cost rate); Ex. I, p. 3 no. 3.
Ex. A 19:2 through 21:10.
In his response to Defendants' recent motion for summary judgment, Plaintiff argues that many of the facts previously referred to as undisputed indeed are contested. Specifically, Plaintiff submits that the truth or falsity of his statements to the Commissioner's Court is an issue of fact that is contested by the parties. The Court finds that this is true — that the parties spend considerable time arguing whether Plaintiff's statements to the Commissioner's Court were true. To take one example, the parties vigorously contest whether Plaintiff's statement regarding the 60 percent no-show rate is accurate or not. Both parties submit evidence in support of their respective arguments. Defendants submit evidence compiling months of CHCS appointment data, reaching a conclusion that the actual no-show rate was only 9 percent. Plaintiff counters with his own data and analysis, showing that over a forty-nine day period preceding Plaintiff's remarks to the Commissioner's Court, the CHCS Josephine Street Clinic experienced a 60 percent no-show rate approximately 32 percent of the time. However, not only are there numerous disputes over whether Plaintiff's statements were factual, there is also significant dispute over the appropriateness of the evidence submitted by both sides regarding the truth of the statements. While the Court does not see the need to address these disputes directly in the context of this discussion, the Court will review all the relevant evidence in the record carefully and will not rely upon hearsay evidence in deciding the issues before it.
See Def.s' Supplemental Evidence, at 2; Ex. F 22:18-22; Ex. G, para. 11.
Plf.'s Resp. (Docket No. 76), at para. 18, Ex. 5. While this information provides only shaky support for Plaintiff's assertion to the Commissioner's Court that CHCS in general was experiencing a 60% no-show rate, it does tend to rebut Defendants' argument that the truth (or lack thereof) of Plaintiff's statements on this point is uncontested.
See, e.g., Def.'s Mot. to Strike Aff. of Jessica Selnikoff (Docket No. 81) and Plf.'s Mot. to Strike Aff. of Paul Sisler (Docket No. 89).
Plaintiff disputes whether he ever represented that CHCS was in violation of a state legislative mandate regarding percentage of revenue expended on overhead and administrative costs. He argues that, instead of asserting that CHCS was in violation of FY2003 legislative requirements, he represented to the Commissioner's Court that the agency would likely violate the FY2004 requirements given upcoming changes in the law. Based upon the fact that significant disputes exist regarding material facts, Plaintiff argues that Defendants are not entitled to summary judgment.
Docket No. 76, at para. 17; CHCS 0402, Ex. 4, at 18-30.
Defendants also argue that Plaintiff's statements amounted to defamatory speech and that his First Amendment claim fails because defamatory speech against a government employer is not protected by the First Amendment. Further, Defendants argue that prove a First Amendment retaliation claim under the Pickering analysis, Plaintiff's must show that his speech outweighed CHCS's interest in efficiency and continued operations and that the Court must look at the facts as the Defendants reasonably found them. Defendants cite the 2005 Fifth Circuit decision in Johnson and the 1994 Supreme Court decision in Waters v. Churchill, arguing that these precedents provided them with the authority to act on their reasonable perceptions of Plaintiff's speech, which they found to be plagued with misrepresentations.
Def.'s Mot. (Docket No. 63), at 5. See Arnett v. Kennedy, 416 U.S. 134, 160-61 (1974) (government employer may restrict speech for efficiency of agency) (citing Pickering, 391 U.S. at 568 and Meehan v. Macy, 392 F.2d 822, 835 (1968)).
Docket No. 63 at 5 (citing Johnson, 369 F.3d at 830-32).
511 U.S. 661 (1994).
Defendants also assert that they reasonably relied upon reports of CHCS employees in determining that the speech contained false information and information designed to cast a negative light on the CHCS administration. Defendants point to evidence already described indicating that the comments indeed had a significant negative impact on CHCS operations and funding. Based upon these facts and the belief that Plaintiff's comments misrepresented information to the Commissioner's Court, Defendants argue that they were reasonable in terminating Plaintiff and that Evans is entitled to qualified immunity for doing so.
Johnson, 369 F.3d at 832 (reasonable to rely upon reports in determining truth of statements made by employees).
Plaintiff counters, arguing that Defendants misconstrue Johnson and Waters and that their reliance upon them is misplaced. Plaintiff argues that Waters does not apply when the true content of the contested speech is known, but when the content is in dispute and "defendants hold an erroneous and unreasonable belief about what plaintiff said." Here, Plaintiff argues that because the proceedings of the Commissioner's Court meeting were audio-taped and the transcript has become part of the record before the Court, Waters and Johnson do not apply.
Citing Waters, 511 U.S. at 678.
The Waters case concerned a nurse, Churchill, who was discharged from her job at a public hospital, allegedly because of statements she make to a co-worker during a work break. As Plaintiff argues, the actual substance of the nurse's speech in Waters was in dispute. The district court granted defendants' motion for summary judgment, finding that management could fire Churchill without constitutional consequence because neither version of her speech was protected under the Supreme Court's test in Connick v. Myers. The Seventh Circuit Court of Appeals reversed, holding that Churchill's speech, viewed in the light most favorable to her, was protected speech under Connick and held that the judicial inquiry into the constitutionality of the alleged retaliation must turn on what the speech actually was, not on what the employer understood it to be. The Supreme Court granted certiorari because of a split among the circuits and vacated the Seventh Circuit's decision, remanding the case for further proceedings.
Id.
511 U.S. at 664 (citing Connick, 461 U.S. 138).
977 F.2d 1114, 1122-24 (1992).
In its analysis, the Supreme Court discussed the proper approach to applying the Connick test to disputed facts in First Amendment retaliation cases in the context of government employment. Reviewing earlier Supreme Court precedent, Justice O'Connor found that the cases "establish a basic First Amendment principle: Government action based on protected speech may under some circumstances violate the First Amendment even if the government actor honestly believes the speech is unprotected."
511 U.S. at 668. The Connick test is substantially the same as the Pickering test referenced above, and is articulated by Justice O'Connor in Waters as "To be protected, the speech must be on a matter of public concern, and the employee's interest in expressing herself on this matter must not be outweighed by any injury the speech could cause to the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Id.
Justice O'Connor stated that "the dispute [was] over how the factual basis for applying the [ Connick] test — what the speech was, in what tone it was delivered, what the listener's reactions were — is to be determined." Id.
Id. at 669.
However, the Court in Waters undertook an analysis of how courts should review government employment decisions implicating the First Amendment. In so doing, the Court addressed the distinction between the government's role as an employer compared with its role in setting and administering government policy. The Supreme Court concluded that the government's interest in achieving its goals efficiently is more significant when acting as an employer — compared with the same interest when it acts as a sovereign — and that courts should tolerate more restrictions on speech when government is acting in this role.
511 U.S. at 675 ("In other First Amendment contexts, the need to safeguard possibly protected speech may indeed outweigh the government's efficiency interests. . . . But where the government is acting as employer, its efficiency concerns should, as we discussed above, be assigned a greater value.").
Based upon these considerations, the Waters Court held that lower courts could rely on the factual determinations of government employers in analyzing First Amendment retaliation claims against the employers. While the Court qualified its holding by stating that courts may require a showing that the employer's decision was reached reasonably and in good faith, but would not require the government manager "to come to its factual conclusions through procedures that substantially mirror the evidentiary rules used in court," an outcome the Supreme Court felt flowed from the Seventh Circuit's holding below.
Id. at 677-78.
Id. at 675-76.
Responding to Justice Stevens's dissent, which argued that the holding would provide less protection for a fundamental right than the law provides even for lesser rights, the majority stated that,
We have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information. Where an employee has a property interest in her job, the only protection we have found the Constitution gives her is a right to adequate procedure. And an at-will government employee . . . generally has no claim based on the Constitution at all. The Supreme Court found that the employer's termination of Churchill — based upon the facts as they reasonably found them — was appropriate under Connick. This was true the Court stated, even if the speech was related to a matter of public concern: "the potential disruptiveness of the speech as reported was enough to outweigh whatever First Amendment value it might have had."
Id. at 679.
Id. at 680.
In the Johnson case, the Fifth Circuit addressed a First Amendment retaliation claim brought by a public employee, Johnson, who had been employed by Louisiana Department of Public Safety ("DPS") as a motor vehicle inspector. Johnson and three co-workers filed a complaint with the internal affairs department against his supervisor, Watson, for sexual harassment of two different, female co-workers. DPS Internal Affairs officer Watts investigated Johnson's complaint on behalf of the alleged victims and found that the harassment claims were baseless and, indeed, that the alleged victims had all denied the alleged harassment and complained instead of Johnson's conduct in badgering them into making claims of harassment against Watson. Johnson was subsequently terminated by Deputy DPS Secretary Fontenot. Plaintiff sued the State of Louisiana and five individual defendants, claiming First Amendment violations. The district court dismissed the claims against the state and the defendants in their official capacity and eventually tried the claims against the individual defendants, entering judgment for Johnson against all five after a jury found that defendants retaliated against Johnson for his complaints.
Id. at 829-30.
Id. at 830.
The Fifth Circuit reviewed the district court's decision, determining that the liability of Fontenot — like that of Defendant Evans here — turned on the third element in the Pickering test, the balance of interests. In so doing, the appellate court confronted Johnson's argument that, so long as an allegation was made in good faith, the balance of interests would favor the plaintiff. The Fifth Circuit responded that, to the extent pre- Waters case law supported such a view, Waters effectively changed the analysis with its holding that courts should be guided by the reasonable conclusions reached by government employers when making employment decisions related to protected speech. The Fifth Circuit concluded that, so long as the government employer conducts a reasonable investigation into the factual bases for employee's problematic speech and its potential effects on discipline, harmony, and office efficiency, courts should not second-guess the resulting employment decision, absent evidence of improper or unconstitutional motive.
Id. at 831.
Id. at 831-32.
Id. at 833.
Returning to the facts and claims before it, the Court is thus faced with a difficult situation. Defendants argue that Plaintiff, after having been counseled about making factual statements in his public addresses to the Commissioner's Court, nonetheless addressed the body and misrepresented several important sets of facts. Defendants allege that Plaintiff accused CHCS and its administrators of at the very least making poor decisions and at the worst violating state law and mismanaging government funds. Defendants further allege that Evans and his management team determined that Plaintiff's statements were not true according to the best of their information and that the impact from them in terms of morale, funding, and other consequences would be significant. Indeed, Defendants submit evidence that Plaintiff's statements did have a significant impact on CHCS operations and funding and triggered investigations into CHCS operations and decisions, as the Court found above.
Based upon this set of facts, Defendants argue that Defendant Evans acted reasonably in terminating Plaintiff and that he is entitled to qualified immunity as a result. Certainly, based upon Defendant's view of the situation, this does appear to be an appropriate view of qualified immunity in the context of the Pickering test and as applied to these facts.
However, Plaintiff stresses that the facts upon which the conclusions reached by CHCS and Evans were reached are contested facts and that summary judgment is not appropriate on this record. The Court recognizes that there does appear to be disagreement regarding the material facts at the center of the dispute between the parties. In this posture, the Court is unable to find that summary judgment is appropriate.
The Court is also mindful of recent guidance provided by Kinney v. Weaver, in which the Fifth Circuit addressed a district court's denial of summary judgment on the issue of qualified immunity. Responding to a charge made by the dissent that the court's Pickering analysis perverted the First Amendment analysis by making the balancing test essentially a question for the jury, the Fifth Circuit stated that, "[i]t is for the court to determine the importance of a plaintiff's speech interest, to determine the importance of a governmental interest in efficient operations, and to balance the relative weight of each."
Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004).
However, the Fifth Circuit recognized in Kinney, as in the case before this Court, that there were genuine issues of material fact and concluded that "summary judgment must sometimes be denied in Pickering cases because of genuine factual disputes concerning whether admittedly legally important government interests are implicated on a given record."
Id. at 372 (citing cases).
The Court finds that the situation before it is analogous to that before the court in Kinney in that factual disputes preclude summary judgment on the issue of qualified immunity. As a result, the Court must deny Defendant's motion for summary judgment on the issue of qualified immunity as it relates to Defendant Evans.
II. Motion for Partial Summary Judgment as to Plaintiff's Section 1983 (Fourteenth Amendment) Claim of Stigmatization
Defendants also move for partial summary judgment on Plaintiff's Section 1983 claim for alleged violation of the Fourteenth Amendment, a claim parties refer to as Plaintiff's "stigmatization" claim. Plaintiff's amended complaint states that CHCS had policies in placed for terminating employees and that the procedures called for the provision of a "name-clearing" hearing. (Docket No. 29 at 7). He alleges that Defendants grossly violated these guidelines by failing to provide him with an appropriate opportunity to clear his name after he was fired under circumstances that raise a "cloud of suspicion." ( Id.). This appears to be the extent of Plaintiff's substantive allegations with regard to his Fourteenth Amendment claim. Defendants argue that Plaintiff's conclusory allegations are insufficient to state a claim under the Fourteenth Amendment and that he fails to even plead several of the elements for such a claim. Further, Defendants argue, even if he did properly state such a claim, the evidence does not support liability against them on it.
The Fifth Circuit holds that to state a claim for deprivation of a liberty interest such as the one asserted by Plaintiff, one must allege more than merely the stigma of discharge. Specifically, the Hughes court stated that, to prevail on a Section 1983 claim like the one before the Court, Plaintiff must show (1) that he was discharged; (2) that stigmatizing charges were made against him in connection with the discharge; (3) that the charges were false; (4) that he was not provided notice or an opportunity to be heard prior to his discharge; (5) that the charges were made public; (6) that he requested a hearing to clear his name; and (7) that the employer refused the request for a hearing.
Hughes v. City of Garland, 204 F.3d 223, 226 (5th Cir. 2000).
Id.
Defendants argue that Plaintiff failed to even plead three of these essential elements: that defamatory charges were made public, that he requested a hearing to clear his name, and that the request was denied. Further, Plaintiff admitted during his deposition that neither Defendant made defamatory comments about him. Rather, Plaintiff attempts to rely, as Defendants point out, on the stigma of his termination, stating that CHCS employees were never fired unless the termination was related to a significant ethical problem, casting a negative light on his own termination and his claims that he was terminated because of speech before the Commissioner's Court. Based upon the Fifth Circuit's clear holding in Hughes, Plaintiff cannot rely on the stigma of his termination to support a Section 1983 claim for deprivation of a Fourteenth Amendment liberty interest, without pleading and proving the other elements of such a claim.
Ex. F 68:14 through 72:3.
Ex. F, esp. 70:7-17.
Plaintiff fails to allege and prove that stigmatizing charges were made by Defendants. In his deposition, Plaintiff describes his feelings of frustration and depression when he could not explain why he was terminated. He describes his "impression that . . . [his] character was deeply affected . . . People didn't believe me." Plaintiff described how community members questioned his termination and how this affected his self-image or his image in the community. Plaintiff also asserts that, because of the failure of CHCS to enumerate the exact nature of the reasons it terminated him, his own wife does not believe him and suspects that he "must have done some unspoken thing horribly, even sexually wrong, to have been fired in the way he was." (Docket No. 78 at para. 41).
Ex. F 70:7 through 71:16.
Ex. F 70:18-21.
However, even if Plaintiff could prove that Defendants made stigmatizing charges — which he has not on this record — no public disclosure of such charges occurred. Plaintiff admits as much in his deposition. Similar to the facts in Hughes, the evidence presents nothing more than a situation in which "some people in the community heard rumors about the events leading up to [Plaintiff's] discharge. This casual gossip falls well short of `intentional or official' disclosure by [Defendants]."
Ex. F 71:23 through 72:3.
Rather, the situation, like that in Hughes, is one in which Plaintiff's self-publication of his termination creates a stigmatizing effect. However, as Defendants argue, the Fifth Circuit does not allow liability for this type of self-disclosure. As a result, the Court finds that Plaintiff has failed to properly plead and prove his Section 1983 claim for deprivation of a Fourteenth Amendment liberty interest and that the Defendants' motion for summary judgment on this claim must be granted.
See id.
Id. ("This precedent is sufficient to require rejection of the self-publication rationale."). See also, e.g., Blackburn v. City of Marshall, 42 F.3d 925, 936 n. 10 (5th Cir. 1995).
With regard to the pending motions to strike summary judgment evidence before it, the Court finds that its resolution of the cross motions for summary judgment render it unnecessary to fully address the merits of these motions. The Court will deny these motions to strike at this time, allowing the parties to raise these issues again, in the context of any trial on the merits.
These motions include the following: Def.'s Mot. to Strike Portions of Plf.'s Evidence (Docket No. 49); Def.'s Mot. to Strike Aff. of Frank Monreal (Docket No. 80); Def.'s Mot. to Strike Aff. of Jessica Selnikoff (Docket No. 81); Def.'s Mot. to Strike Aff. of Manual Ruiz Landez (Docket No. 83); Def.'s Mot. to Strike Aff. of Roman Pena (Docket No. 84); Plf.'s Mot. to Strike Aff. of Paul Sisler (Docket No. 89); Plf.'s Mot. to Strike Aff. of Mike Langford (Docket No. 90); Plf.'s Mot. to Strike Aff. of Leon Evans (Docket No. 93); and Plf.'s Mot. to Strike Aff. of Roberto Tejeda (Docket No. 95).
CONCLUSION
For the foregoing reasons, it is ORDERED that Defendant's Motion for Partial Summary Judgment Dismissing Claims Against Leon Evans Based on Qualified Immunity (Docket No. 36) be hereby DENIED.
It is further ORDERED that Defendants' Motion for Partial Summary Judgment Dismissing Sections 1983, 1985, and 1986 Claims Against CHCS and Leon Evans (Docket No. 37) is hereby DENIED AS MOOT.
It is further ORDERED that Defendants' Motion for Summary Judgment (Docket No. 63) is hereby GRANTED as to Plaintiff's claim under 42 U.S.C. § 1983 for deprivation of his Fourteenth Amendment Rights.
It is further ORDERED that Defendants' Motion for Summary Judgment (Docket No. 63) is, in all other respects DENIED.
It is further ORDERED that the following motions of the parties to strike summary judgment evidence are also DENIED: Docket Nos. 49, 80, 81, 83, 89, 90, 95.