Opinion
CIVIL ACTION 4:08-CV-056-Y.
November 18, 2008
ORDER GRANTING INDIVIDUAL DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Pending before the Court is the Individual Defendants' Motion for Summary Judgment on Qualified Immunity Defense [doc. #19]. The Court concludes that the plaintiff Michael Rivera Jr. was acting in his capacity as a public official when he engaged in the speech at issue in this case. As a result, Rivera's speech is not protected and the defendant's motion for summary judgment is GRANTED.
I. Background
Viewing the summary judgment evidence in the light most favorable to the non-movant, these are the events giving rise to this case. Rivera was hired as a police officer by defendant City of Everman police department ("the City") on November 30, 2007. While employed by the City, Rivera emailed his immediate supervisor, defendant Sergeant Robert Alonso, regarding certain incidents Rivera allegedly witnessed. The email itself is not before the Court and the evidence conflicts as to its specific content. Rivera claims to have sent the email to express his concerns after having "witnessed other City of Everman police officers committing illegal acts, including, but not limited to, acts of excessive and unreasonable force exercised against minorities, unlawful assault and battery, and specific acts of overt racism and unlawful racial discrimination." [Pltf. App. at 5] The defendants allege that the email reported Rivera's allegations that City of Everman police officers were working secondary jobs while on duty. [Def. App., Alonso Aff. at 1; Hanson Aff. at 1; Sander Aff. at 2.] Regardless, both sides agree that the email disclosed alleged illegal activity on the part of Rivera's fellow officers. Rivera asserts that in response to his concern he was told "don't make waves." [Pltf. Comp. at ¶ 12.]
Rivera states in his complaint that no formal investigation took place as a result of the email. [Pltf. Comp. at ¶ 14.] Rivera did not provide summary-judgment evidence supporting that allegation however and, according to evidence submitted by all three individual defendants, an investigation into the allegations was begun. Alonso reported Rivera's allegations up the chain of command to defendant Sergeant Michael Hanson. Hanson, in turn, reported Rivera's allegations to defendant Randy Sanders, the City's chief of police. Sanders directed Hanson to investigate Rivera's allegations.
In the meantime, according to defendants, Rivera proved to be "unqualified and unsuitable to continue in the position of police officer." [Def. App., Sanders Aff. at 2] According to Chief Sanders, Rivera demonstrated an unwillingness to perform tasks assigned to him and was generally disruptive to the morale at the City's police department. [ Id.] More specifically, according to Sanders, Rivera remained at the station for almost an entire night although he was assigned to patrol duty, compromised an undercover narcotics investigation by revealing surveillance activity to the suspects, and made a false allegation of theft against another officer. [ Id.] At no point in his affidavit, the sole piece of summary-judgment evidence produced by Rivera, does he contradict or deny these allegations. Based on these actions, Sanders terminated Rivera on February 12, 2007. [ Id. at 3.] Sanders states that neither Hanson nor Alonso participated in the decision to terminate Rivera. [ Id.] Again, Rivera's summary-judgment evidence does not contradict this. On February 22, the investigation into Rivera's allegations was concluded, and the results were reported to Sanders. [ Id. at 2; Pltf. App., Hanson Aff. at 2.]
Rivera filed this suit under 42 U.S.C. §§ 1983 and 1985, alleging that his termination was a result of his email and in violation of his right to engage in free speech under the First and Fourteenth Amendments. The defendants respond that they are entitled to summary judgment on the basis of qualified immunity. They argue that Rivera's act of reporting alleged illegal activity engaged in by fellow police officers was part of, or related to, his official duties as a police officer. As a result, the defendants contend that Rivera's speech is not protected under the First Amendment and the Supreme Court's decision in Garcetti v. Ceballos, 571 U.S. 410 (2006), causing Defendants to be entitled to summary judgment.
In support, the defendants have produced a copy of the City's personnel policy. [Def. App., Sanders Aff. Attach. at 1-8.] Section 7.02 of the policy governs employee conduct. Section 7.02(b) provides "Unacceptable conduct. The following types of conduct are unacceptable and may be the reason for corrective discipline in the form of reprimand, suspension, demotion, or dismissal, depending upon the facts and circumstances of each case. The examples given are typical but not all-inclusive." [Def. App., Sanders Aff. Attach. at 4.] Among the enumerated examples of unacceptable conduct is the "failure to report a violation" as discussed in section 7.02(b)(16). Section 7.02(b)(16) states "Failure to report a violation is exemplified by, but not limited to, failure to report to the proper authority any known violation described in Subparagraphs (5), (6), (7), (8), (10), (11), (12), or (13)." [ Id. at 7.]
Most relevant to this case among the listed subparagraphs are subparagraphs (11) and (13). Subparagraph (11) states:
Disturbance is exemplified by, but is not limited to, the following violations:
(B) deliberate causing of physical injury to another employee or citizen;
(C) intimidation;
(D) unnecessary disruption of the work area;
(E) use of profane, abusive, threatening, or loud and boisterous language;
(G) other disruption of the harmonious relations among employees or between employees and the public
[ Id. at 6.] Subparagraph (13) states "Misconduct is any criminal offense or immoral conduct, during or off working hours, which, if it should become public knowledge, could have an adverse effect on the city or on the confidence of the public in city government." [ Id. at 7.]
Despite these provisions on employee conduct, Rivera argues that his email was not part of his official duties and is, therefore, protected speech. In his affidavit, Rivera states that only two options are available to a city police officer who has witnessed another officer commit a crime. [Pltf. App. at 4.]. The officer may either instigate a police investigation or invoke the City's grievance procedure. [ Id. at 4-5.] He further claims to have consciously avoided these formal avenues and, instead, to have sent an email from his personal email account and personal computer, written while off duty and at home. Resolution of this motion for summary judgment thus turns on "whether the plaintiff was speaking `as a citizen' or as part of [his] public job." See Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008) (describing the analytical framework in light of the Supreme Court's decision in Garcetti).
II. Discussion
A. Summary Judgment Standard
When the record establishes "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law," summary judgment is appropriate. FED. R. CIV. P. 56(c). An issue is considered "genuine" if "it is real and substantial as opposed to merely formal, pretended, or a sham." Bazan v. Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001). Facts are considered "material" if they "might affect the outcome of the suit under governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). To determine whether there are any genuine issues of material fact, the Court must first consult the applicable substantive law to ascertain what factual issues are material. Lavespere v. Niagra Mach. Tool Works, 910 F.2d 167, 178 (5th Cir. 1990). Next, the Court must review the evidence on those issues, viewing the facts in the light most favorable to the nonmoving party. Id.; Newell v. Oxford Mgmt. Inc., 912 F.2d 793, 795 (5th Cir. 1990).
In making its determination on the motion, the Court must look at the full record including the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits. See FED. R. CIV. P. 56(c); Williams v. Adams, 836 F.2d 958, 961 (5th Cir. 1988). Rule 56, however, "does not impose on the district court a duty to sift through the record in search of evidence to support" a party's motion for, or opposition to, summary judgment. Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915-16 n. 7 (5th Cir. 1992). Thus, parties should "identify specific evidence in the record, and . . . articulate" precisely how that evidence supports their claims. Forsyth v. Barr, 19 F.3d 1527, 1536 (5th Cir. 1994). Further, the Court's function is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. See Anderson, 477 U.S. at 249.
To prevail on a summary-judgment motion, the moving party has the initial burden of demonstrating that there is no genuine issue as to any material fact and that he is entitled to judgment as a matter of law. Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986). When the moving party has carried its summary-judgment burden, the respondent must go beyond the pleadings and by his own evidence set forth specific facts showing there is a genuine issue for trial. Arbaugh v. Y H Corp., 380 F.3d 219, 222 (5th Cir. 2004) (citing Celotex, 477 U.S. at 324); see also FED. R. CIV. P. 56(e). This burden is not satisfied by creating some metaphysical doubt as to the material facts, by conclusory allegations, by unsubstantiated assertions, or by only a scintilla of evidence. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the evidence is merely colorable or is not significantly probative, summary judgment may be granted. See Anderson, 477 U.S. at 249-50.
B. Qualified Immunity
Section 1983 provides for a cause of action against individuals or entities acting under the color of state law who have deprived a person of any right, privilege, or immunities secured by the Constitution and laws of the United States. See 42 U.S.C. § 1983; McClendon v. City of Columbia, 305 F.3d 314, 322 (5th Cir. 2002) (en banc). To the extent a plaintiff seeks money damages directly from the public officials for their actions taken under color of state law, the officials may invoke their right to qualified immunity. See Hafer v. Melo, 502 U.S. 21, 26 (1991). Public officials performing discretionary functions enjoy immunity from suits for damages, provided their "conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
Evaluation of a claim of qualified immunity involves a twostep inquiry. See Davis v. McKinney, 518 F.3d 304, 317 (5th Cir. 2008). "First, a court must decide whether the plaintiff's allegations, if true, establish a violation of a clearly established right." Id. If a violation is alleged, the court must then "decide whether the conduct was objectively reasonable in light of clearly established law at the time of the incident." Id
When reviewing the matter in the context of a motion for summary judgment, the court must also "determine whether the record indicates that the violation occurred, or gives rise to a genuine issue of material fact as to whether the defendant actually engaged in the conduct that violated the clearly established right." Conroe Creosoting Co. v. Montgomery County, 249 F.3d 337, 340 (5th Cir. 2001). Qualified immunity "provides ample protection to all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986). The burden is on the plaintiff to show the inapplicability of the qualifiedimmunity defense. See McClendon v. City of Columbia, 305 F.3d 314, 323 (5th Cir. 2002).
C. Retaliatory Firing
To succeed on a claim that he was terminated in retaliation for exercising his First Amendment rights, a plaintiff must show that "(1) he suffered an adverse employment action, . . . (2) he spoke as a citizen on a matter of public concern, . . . (3) his interest in the speech outweighs the government's interest in the efficient provision of public services, . . . and (4) the speech precipitated the adverse employment action." Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007). The second element, which asks whether the speech was as a citizen on a topic of public concern, involves a two-step evaluation under Garcetti v. Ceballos, 547 U.S. 410 (2006). See Davis v. McKinney, 518 F.3d 304, 311-12 (5th Cir. 2008) (describing the analytical framework in light of the Supreme Court's decision in Garcetti). The threshold inquiry is "whether the plaintiff was speaking `as a citizen' or as part of [his] public job." Id. at 312 (quoting Mills v. City of Evans-ville, 452 F.3d 646, 647-48 (7th Cir. 2006)). If the government has penalized the plaintiff's speech "as a citizen," the court then considers the subject-matter of the speech to determine if it is on a topic of public concern. See id. Conversely, speech made as part of, or in relation to, one's job duties, is not protected by the First Amendment. See Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 693 (5th Cir. 2007). Whether a plaintiff spoke as a citizen on a matter of public concern or pursuant to his official duties is a question of law for the Court to decide. See id. at 692-94.
In its most recent statement of the elements of a retaliatory discharge claim, the United States Court of Appeals for the Fifth Circuit omits the portion of the second element that calls for an analysis of whether the plaintiff engaged in speech as a citizen or as a public official. See James v. Tex. Collin County, 535 F.3d 365, 375 (5th Cir. 2008). Nevertheless, because this portion the analysis is mandated by the Supreme Court's decision in Garcetti, and has been recognized by previous decisions of the court of appeals, this Court utilizes the statement of the elements set forth in Nixon.
Under Garcetti v. Ceballos, the court's focus in determining whether the plaintiff was speaking as a private citizen must be on "the role the speaker occupied" when he engaged in the speech. Williams, 480 F.3d at 692. Case law makes the distinction between "speech that is the kind of activity engaged in by citizens who do not work for the government and activities undertaken in the course of performing one's job." Id. at 693 (internal citations and quotations omitted). Various other factors inform the court's analysis as well, including whether the speech was required or related to the plaintiff's official duties; to whom the speech was made; and whether the plaintiff adhered to "chain of command" when engaging in the speech. See Davis, 518 F.3d at 311-13. But neither a formal job description nor the fact that the speech relates to one's employment is dispositive on the threshold issue. See Williams, 480 F.3d at 692. A court may also consider whether the plaintiff was exposed to the information underlying his speech as part of his duties or as a private citizen. See Williams, 480 F.3d at 694 (noting, in concluding that the plaintiff's speech was in the course of his public duties, that the plaintiff had "special knowledge" due to his public position). Even so, speech may not be held unprotected on this basis alone. See Charles v. Grief, 522 F.3d 508, 513 (5th Cir. 2008) ("To hold that any employee's speech is not protected merely because it concerns facts that he happened to learn while at work would severely undercut First Amendment rights."). The fact that the speech was on an important public issue such as police corruption is irrelevant to the threshold inquiry. See Williams, 480 F.3d at 693 (discussing Garcetti). Ultimately, the inquiry must be a practical one, keeping the Supreme Court's overarching objective of allowing governmental employers a significant degree of control over their employees' words and actions while at the same time protecting the right of public employees to engage in speech in certain contexts. See Garcetti, 547 U.S. at 418-19, 424.
D. Analysis
At the outset of the analysis, the Court notes that in his complaint Rivera advances claims under both § 1983 and § 1985. Rivera does not specify what subsection of § 1985 he relies upon. Under § 1985(2), the plaintiff must establish "(1) a conspiracy between two or more persons, (2) to deter a witness by force, intimidation, or threat from attending federal court or testifying freely in a matter there pending, which (3) causes injury to the claimant." Mitchell v. Johnson, No. 07-40996, 2008 U.S. App. LEXIS 17194, at *6 (5th Cir. August 8, 2008). Section 1985(3) requires that plaintiff establish that he is a member of a protected class; that the defendants conspired to deprive him of constitutional rights; that the defendants acted with class-based, invidiously discriminatory animus; and that plaintiff suffered damages as a result. See Griffin v. Breckenridge, 403 U.S. 88, 102-103 (1971).
Section 1985(1) provides a cause of action for "conspiracy to prevent a person from taking federal office or prevent a federal official from discharging his or her official duties." Taylor v. Federal Home Loan Bank, 661 F. Supp. 1341, 1345 n. 3 (N.D. Tex. 1986). "Section 1985(1) relates only to officers of the United States" and does not apply to claims by state officials. Salmon v. Miller, 951 F. Supp. 103, 106 (E.D. Tex. 1996) (citing Kush v. Rutledge, 460 U.S. 719 (1983)). Plaintiff has not alleged any facts in support of these elements essential to a claim under § 1985. Summary judgment in favor of the defendants as to Rivera's § 1985 claim is, therefore, GRANTED.
Turning to Rivera's First Amendment claim under § 1983, accepting Rivera's version of the events as true: in his email to Alonso, Rivera alleges to have witnessed multiple unlawful acts committed by other City of Everman police officers. While a citizen may witness an act of police misconduct, as a practical matter it would be difficult, if not impossible, for the average citizen to personally witness a pattern of misconduct. Rivera's knowledge of the alleged pattern of misconduct is a result of his position within the police department and, therefore, weighs in favor of finding his speech unprotected. See Williams, 480 F.3d at 694.
Having allegedly witnessed criminal acts by other officers, Rivera proceeded to inform Sergeant Alonso. The fact that speech occurs at the workplace between employees is not dispositive on the issue of whether the speech was as a citizen or a public official. See Garcetti, 547 U.S. at 420-21 (noting that "all speech within the workplace is [not] automatically exposed to restriction"). Nevertheless, the fact that Rivera's speech was wholly internal is a factor to be considered. See Grief, 522 F.3d at 514 (noting, in concluding that speech was engaged in as a citizen, that the plaintiff's decision to voice his complaints externally, rather than report them internally, is a "significant distinction"); see also Williams, 480 F.3d at 694, n. 2 ("This is not a case where Williams wrote to the local newspaper or school board with his athletic funding concerns."). Rather than "tak[ing] his job concerns to person outside the workplace," Davis, 518 F.3d at 313, Rivera reported his concerns internally.
Significantly, Rivera did not merely keep his concerns internal. Instead, he voiced his concerns to Sergeant Alonso. The only summary-judgment evidence before the Court as to the relative position of Rivera and Alonso within the hierarchy of the police department is that Alonso was Rivera's immediate supervisor. [Def. App., Alonso Aff. at 1.] "Speech related to an employee's job duties that is directed within the employee's chain of command is not protected." Davis, 518 F.3d at 315. Indeed, "the caselaw is unanimous" on this point. Id. at 313 n. 3.
Rivera contends that this speech does not relate to his duties as a police officer. But the provisions of the City's personnel policy, which define what is considered "unacceptable conduct" clearly cover this situation. [Def. App., Sanders Aff. Attach. at 4.] Among the conduct deemed unacceptable is the failure to report other unacceptable conduct as defined by the policy. [ Id. at 7.] The policy provides examples of the sort of unacceptable conduct that must be reported, including being abusive toward, threatening, intimidating, or injuring a citizen. [ Id. at 6.] A city employee must also report any "other disruption of the harmonious relations among employees or between employees and the public" as well as "any criminal offense or immoral conduct, during or off working hours, which, if it should become public knowledge, could have an adverse effect on the city or on the confidence of the public in city government." [ Id. at 6-7.] Having allegedly witnessed his colleagues engaged in various criminal and immoral acts, Rivera was bound by the City's policy to report such acts. Cf. Branton v. City of Dallas, 272 F.3d 730, 740-41 (5th Cir. 2001) (concluding that plaintiff internal-affairs officer's report of another officer's false testimony during an administrative hearing was protected as a matter of public concern because the city's "ethical standards of truthfulness and honesty" were understood to impose on plaintiff a duty to report false testimony by other officers).
The Court recognizes that the description of an employee's duties contained in a formal policy is not dispositive. See Garcetti, 547 U.S. at 424-24. Moreover, the Fifth Circuit recently concluded, in a case with facts fairly similar to this one, that a summary judgment was not proper. See Williams v. Riley, 275 Fed. Appx. 385 (5th Cir. April 25, 2008). In Riley, two jailers witnessed an inmate being beaten by an officer. See id. at 387. After reporting what they had witnessed, the jailers were terminated on unrelated charges of misconduct. See id. The jailers filed suit, alleging that the termination was retaliatory and, therefore, in violation of their First Amendment right to free speech. See id. Based on its conclusion that the report was part of the plaintiff jailers' official duties, the district court held the jailers' speech unprotected under Garcetti and granted summary judgment in favor of the defendant sheriff and sheriff's deputies.
The court of appeals vacated and remanded, noting that the plaintiffs had challenged whether the policy applied to them. Id. at 389. And, without reciting the provisions of policy at issue, the court of appeals states simply that "the Policy . . . does not undisputedly impose a duty on Plaintiffs to report the incident" in that "it concerns improper conduct and was not shown to be applicable." Id. The court goes on to note that the plaintiffs' duties, as defined informally, were "scarcely mentioned." Id.
Conversely, in this case, the policy clearly deals with the scenario alleged by Rivera. All three individual defendants — the chief of police and two sergeants — state that the personnel policy applies to police officers and requires them to report misconduct by other officers. [Def. App., Sanders Aff. at 2; Hanson Aff. at 2; Alonso Aff. at 2.] Simply put, Plaintiff claims to have witnessed other officers engaged in illegal activity and the City's policy requires that such activity be reported. Additionally, as discussed above and as will be further demonstrated, the Court is not relying on the terms of the policy alone. Moreover, regardless of the terms of the policy, Rivera's duties required him to report his allegations as a practical matter. See Garcetti, 547 U.S. at 424 ("The proper inquiry is a practical one."); see also Riley, 275 Fed. Appx. at 389 ("[I]t may be presumed that an employee's official job duties at a reasonable sheriff's department would include reporting crimes perpetrated at work by department members. . . ."). While the facts in Riley, or lack thereof, may have been such as to overcome the common-sense presumption that a jailer must report the abuse of inmates by law-enforcement personnel, they are not so here. The proposition that a police officer does not have a duty as an officer to report the criminal activity of his fellow officers is indeed dubious. And when a common-sense understanding of an officer's responsibilities is considered alongside the terms of the City's policy, it is clear that Rivera's email at least related to his official duties. See Williams, 480 F.3d at 693-94 (concluding that a memo written by a school district's athletic director, although not required by his job, was so closely related to his duties as to be unprotected under Garcetti). Rivera also argues that the manner in which he contacted Alonso was specifically calculated to avoid the City's policies and procedures. He claims this is evidenced by the fact that he contacted Alonso while off duty and at home through the use of his personal computer and personal email account. Even assuming that Rivera's claim regarding the available reporting options is true, this argument fails. That an employee communicated by way of his personal email account from his personal computer is a factor to consider under Garcetti. See Charles v. Grief, 522 F.3d 508, 513-14 (5th Cir. 2008). But the emails at issue in Grief were sent outside of the plaintiff's chain of command to members of the Texas legislature. See id. at 513. Moreover, the emails contained the plaintiff's personal contact information, further indicating the personal nature of the emails. See id. at 514. "Most significantly" the emails were "not even indirectly related to [the plaintiff's] job." Id.
Furthermore, Rivera's admission that there are procedures in place through which to report misconduct undermines his claim that his email reporting misconduct to his supervisor was not pursuant to his official duties. See Williams, 480 F.3d at 693-94. The fact that Rivera engaged in speech contemplated by his official duties in a manner other than that prescribed by official policy is insufficient to transform his speech into that of a citizen. See Nixon, 511 F.3d at 499 (concluding that an officer's statements to the media after reporting to the scene of an accident was unprotected speech made pursuant to official duties even though the officer was not authorized to speak to the media because "the fact that [the officer] performed his job incorrectly, [or] in an unauthorized manner . . . does not convert his statement . . . into protected speech.").
Ultimately, the key distinction under Garcetti is "between speech that is `the kind of activity engaged in by citizens who do not work for the government' and activities undertaken in the course of performing one's job." Williams, 480 F.3d at 693 (quoting Garcetti). Throughout his brief Rivera stresses that he was merely attempting to bring to light a matter that has consistently been held to be of public concern. See Davis v. Ector County, Tex., 40 F.3d 777, 782 (5th Cir. 1994) ("The disclosure of misbehavior by public officials is a matter of public interest and therefore deserves constitutional protection, especially when it concerns the operation of a law enforcement agency."). But the societal import of the speech at issue is not relevant under the Garcetti threshold inquiry. See Williams, 480 F.3d at 693. And while a private citizen who has witnessed police misconduct may well attempt to bring it to light, Rivera's actions in this case undermine any claim that he was acting as a private citizen when he made his allegations. Rather than going public with his claims, he reported them to his immediate supervisor, in apparent conformity with the City's policy in an admitted attempt to "get guidance." There is simply no analogous course of action that a private citizen could engage in. See Garcetti, 547 U.S. at 423-24 ("Employees who make public statements outside the course of performing their official duties retain some possibility of First Amendment protection because that is the kind of activity engaged in by citizens who do not work for the government [but w]hen a public employee speaks pursuant to employment responsibilities, . . . there is no relevant analogue to speech by citizens who are not government employees.").
III. Conclusion
Accordingly, the Court concludes that Rivera was acting in the capacity of a public official when he reported his allegations of misconduct to Alonso. The defendant's motion for summary judgment is, therefore, GRANTED.