Summary
finding that county engineer was not a policymaker who could subject Comal County to liability
Summary of this case from Price v. Jefferson CountyOpinion
No. SA-01-CA-445-RF
February 10, 2004
ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are Defendants' Motion for Summary Judgment (Docket No. 124), Plaintiffs' Response (Docket No. 127), Defendants' Reply (Docket No. 133), and Plaintiffs' Reply (Docket No. 135). After due consideration, the Court DENIES the motion.
I. Background
The instant controversy arises out of Plaintiffs' employment as health inspectors with Comal County's Environmental Health Department. According to Plaintiffs' First Amended Complaint (Docket No. 92), Wallace and Kniss were terminated from their employment by Defendants Comal County, Scheel, Schwab, and Hornseth on May 28, 1999, in retaliation for their enforcement of environmental rules and regulations. Plaintiffs filed this lawsuit on May 25, 2001, alleging that Defendants violated their rights under the First Amendment, actionable pursuant to 42 U.S.C. § 1983. Plaintiffs sued Tom Hornseth, the Comal County Engineer who terminated them, the county commissioners, the county judge, and the county itself. Defendants initially moved for summary judgment based on qualified immunity. The Court granted judgment to all individual defendants except Hornseth. Then Plaintiffs' filed an amended complaint again naming Commissioner Schwab and County Judge Scheel based on discovery that showed that Schwab and Scheel were involved with the terminations. The Court granted summary judgment to Defendant Comal County, finding that Hornseth was not a policymaker who could subject the County to liability. Now the three individual defendants move for summary judgment based on qualified immunity.
Plaintiffs, in their First Amended Complaint, dropped the claims against Defendant Hornseth in his official capacity.
The facts are from Plaintiffs' Statement of Facts in the Appendix to Plaintiffs' Response. In deciding a summary judgment motion, the Court must view the facts in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986).
Comal County is rural and septic systems are essential to the construction of new homes. Comal County sits over various underground water sources that will be polluted with sewage if septic systems are not properly installed. It is the heath inspectors' job to review applications for septic systems and determine if they are in compliance with standards established by the Texas Natural Resources Conservation Commission ("TNRCC"). The job of health inspector is necessarily antagonistic to many of the County's intended home builders and septic system installers.
It is now referred to as the Texas Council on Environmental Quality.
Plaintiff Monica Wallace was employed as a health inspector by Comal County from August 29, 1983 to May 28, 1999. Plaintiff Patty Kniss worked for Comal County from January 27, 1992 to May 28, 1999. Both Wallace and Kniss were terminated on May 28, 1999. Tom Corlette, the Human Resources Department Head, was suspended on May 28, 1999 and then fired. Neither Wallace or Kniss ever received less than an "Acceptable" job evaluation. Wallace frequently received a "Commendable" rating with merit raises.
Starting in the late 1980's, Wallace served as the head of the Environmental Department which at that time was responsible for reviewing and overseeing the applications for septic systems. Kniss was hired by Wallace to be a health inspector in the Environmental Department. Wallace and Kniss' enforcement of TNRCC rules caused problems with the County Commissioners, who received many calls complaining that Wallace's enforcement of the rules was "hard-nosed." Wallace enforced rules "by the book," but the Commissioner's Court preferred to sometimes "bend the rules." Installers and designers were complaining that the permit process cost them money, and that Wallace and Kniss enforced the rules so strictly they would go out of business.
Schwab Depo, pp. 7-8, 11.
Schwab Depo, pp. 8, 18.
Martinez Depo, at 18, 19.
Hornseth Depo., at 85.
In 1996, the County began a "block by block dismantling of [Wallace's] office." The Commissioners placed the Environmental Health Department under Tom Hornseth, the County Engineer. Wallace was therefore no longer a Department Head, though her salary did not decrease. Defendants claim the purpose of the movement of the Environmental Health Department was to make things more efficient and to better serve the public of Comal County. In 1997, Hornseth suspended Wallace's managerial responsibilities.
Corlette Depo., at 123.
Def's Mot. for Summ. Jud, Appendix, at 3.
This suspension became a permanent demotion in June 1998 and Wallace became one of three health inspectors. The reason given was failure to cooperate. The Human Resources Chief, Tom Corlette warned the commissioners against demoting someone with no written discipline in support. The demotion was also not supported by any warning to Wallace. Hornseth then promoted Wallace's receptionist, Brenda Ritzen, to supervisor of the Environmental Health section on June 25, 1998. Ritzen lacked any field experience and had not acquired the required training for a health inspector. Wallace appealed her demotion to the Commissioner's Court. Kniss testified on her behalf. The Commissioners denied Wallace relief in an unanimous vote.
On March 16, 1999, Wallace sent a fax to James McCaine of the TNRCC stating that she believed she was being overruled regarding violations of the TNRCC rules. Wallace spoke daily with Hornseth about rules violations. Hornseth would become angry and hosfile. Hornseth told Wallace to stop contacting the TNRCC and to keep problems "in house." Kniss likewise spoke to Hornseth and Ritzen about violations of the TNRCC rules, and to TNRCC officers. Kniss was told not to contact TNRCC directly and was required to go through Ritzen to contact the TNRCC.
Wallace Affidavit, at para. 12.
Hornseth Depo., at 176; Kniss Depo, at 92-93.
On or about May 5, 1999, the County Commissioners called Tom Corlette into Judge Scheel's office to discuss Wallace. Corlette offered to draft a document entitled the "HR View," detailing how the treatment of Wallace could be viewed by outsiders. Among other things, the document stated that the problem with Wallace was that "she adheres to the rules laid down by the TNRCC regarding septic tank installation. By doing so, she has incur[red] the wrath of shoddy installers and some homeowners who like to take shortcuts. This prompts calls to the Commissioner's Court. Since the callers are `constituents,' some members of the Commissioner's Court would like to see Monica [Wallace] relax a litte bit on rigid rule enforcement. Corlette provided the "HR view" to Scheel because he knew the Commissioners would be discussing Wallace with the County's law firm, Bickerstaff, the following week.
Corlette Depo., Exh. 4.
Corlette Depo., Exh. 4, p. 2.
Hornseth then made a tentative decision to terminate Wallace and Kniss. He went to the County Commissioners to discuss the terminations. Wallace and Kniss had not been warned about the possibility of termination but Hornseth had told Wallace numerous times that Scheel wanted her terminated. Wallace and Kniss were terminated on May 28, 1999. Corlette was suspended the same day, and subsequently terminated. He was terminated because he told Scheel that if Wallace's termination ever went to Court, he would support Wallace.
Wallace Depo., at. 122-23.
Scheel Depo, at 33.
B. Discussion
A. Legal Standard
Summary judgment is appropriate when there are no genuine issues as to any material facts, and the moving party is entitled to judgment as a matter of law. A court must be satisfied that no reasonable trier of fact could find for the nonmoving party or, in other words, "that the evidence favoring the nonmoving party is insufficient to enable a reasonable jury to return a verdict in his favor." The moving party bears the burden of establishing that there are no genuine issues of material fact.
See FED. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986).
Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 178 (5th Cir. 1990) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).
If the dispositive issue is one on which the nonmoving party will bear the burden of proof at trial, the moving party may satisfy its burden by merely pointing out that the evidence in the record contains insufficient proof concerning an essential element of the nonmoving party's claim. The burden then shifts to the nonmoving party, who must, by submitting or referring to evidence, set out specific facts showing that a genuine issue exists. The nonmovant may not rest upon the pleadings, but must identify specific facts establishing that a genuine issue exists for trial. The Court, in turn, "must draw all reasonable inferences in favor of the nonmoving party, and . . . may not make credibility determinations or weigh the evidence."
See Celotex, 477 U.S. at 325; see also Lavespere, 910 F.2d at 178.
See Celotex, 477 U.S. at 324.
See id. at 325; Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1996).
Reeves v. Sanderson Plumbing Prods., Inc. 530 U.S. 133, 150 (2000) (citations omitted).
B. Analysis
Defendants have moved for summary judgment on multiple grounds. The Court will address each issue in turn.
I. Procedural Limitations
Defendants' first argument pertains to which facts and allegations the Court may consider in relation to Plaintiff's claims. Defendants argue that no acts before May 25, 1999, two years before Plaintiffs' suit was filed, may be considered because Texas' two year statute of limitations applies to cases brought under 42 U.S.C. § 1983 for violations of First Amendment rights. Plaintiffs' terminations, which occurred on May 28, 1999, are within the statute of limitations. Defendants concede that Plaintiffs are suing in regard to their terminations. Defendants, however, believe that Plaintiffs' are also trying to litigate earlier actions, such as Wallace's demotion in 1996, and claim that any events before May 25, 1999, are barred from this Court's consideration. Plaintiffs respond that events that occurred before the termination are admissible as background evidence explaining the termination.
Hitt v. Cornell, 301 F.3d 240, 246 (5th Cir. 2002). The case was filed May 25, 2001.
Def's Mot. for Summ. Jud., at, 3.
Both parties cite cases involving the continuing violations doctrine. However, the Court thinks both parties have missed the actual issue. Both parties agree the suit is timely filed. Defendants claim that certain evidence cannot be taken into account because it concerns action that occurred outside the relevant period allowed by the statute of limitations. This argument is more properly construed as a Motion to Strike Plaintiff's summary judgment evidence concerning events prior to May 25, 1999 rather than as grounds for summary judgment itself. The Court will deny this claim because the Court is free to parse the evidence in its determination of the summary judgment motions, sorting the admissible from the inadmissible, and regarding only that which would be admissible at trial. Furthermore, the Court is able to use any information from before May 25, 1999 as background information only and not as a substantive ground for relief. Thus, the Court finds that striking any of the information from the record is unnecessary. If Defendants were concerned about any information from before May 25, 1999 being brought out at trial, such concerns are more properly raised in a Motion in Limine at trial.
See Akin, 959 F.2d 521, 531 (5th Cir. 1992).
II. Liability of Schwab and Scheel
Whether a heightened pleading requirement applies to claims against government officials in their individual capacity under § 1983, the Court is of the opinion that plaintiffs suing governmental officials in their individual capacities must allege specific conduct giving rise to a constitutional violation. Plaintiffs must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged. It is not enough to allege that government officials with no direct contact with a plaintiff are responsible for acts of their subordinates. And, the actions plaintiffs complain about "must be pleaded with `factual detail and particularity,' not mere conclusary allegations."
Anderson v. Pasadena Independent School Dist., 184 F.3d 439, 443 (5th Cir. 1999). The Supreme Court abrogated the Fifth Circuit heightened pleading requirement for actions against municipalities, but did not consider whether qualified immunity jurisprudence would require heightened pleading in cases against individual government officials. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 166-67 (1993). The Fifth Circuit thereafter declined to abandon the heightened pleading requirement in claims of individual liability. See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995).
Anderson, 184 F.3d at 444 citing Woods v. Edwards, 51 F.3d 577, 583 (5th Cir. 1995).
Id.
Anderson, 184 F.3d at 444 quoting Jackson v. Widnall, 99 F.3d 710, 715-16 (5th Cir. 1996).
Defendants argue that Plaintiffs have failed to meet a heightened pleading requirement for Defendants Scheel and Schwab. Defendants claim the summary judgment evidence is indisputable that Hornseth terminated Plaintiffs. Defendants state that the only other allegations with which Plaintiffs have come forward is that Scheel conferred with Hornseth before the terminations and that Scheel criticized the speed with which Plaintiffs' processed applications. Regarding Schwab, Defendants state Plaintiffs have only alleged one complaint Schwab made. Defendants cite cases for the proposition that mere criticisms are not a constitutional deprivation for the purposes of the First Amendment. Defendants also argue that even if Scheel recommended that Hornseth terminate Plaintiffs, Scheel cannot be liable under § 1983 because he did not terminate Plaintiffs himself. Finally, Defendants claim that neither Schwab nor Scheel were aware Plaintiffs made complaints to the TNRCC, or that Hornseth had any discussions with Plaintiffs regarding their communications with TNRCC. Defendants cite two cases in support of this argument, Lukan v. North Forest ISD, and Burns-Toole v. Byrne.
See Harrington v. Harris, 118 F.3d 359, 365-366 (5th Cir. 1997), cert denied 522 U.S. 1016 (1997); Breaux v. City of Garland, 205 F.3d 150, 158 (5th Cir. 2000), cert. denied 531 U.S. 816 (2000); Hoskins v. Kaufman Independent School District, 2003 WL 22364356 (N.D. Tex. 2003).
See Beattie v. Madison County School District, 254 F.3d 595, 605 (5th Cir. 2001).
183 F.3d 342, 346 (5th Cir. 1999), cert. denied, 529 U.S. 1019 (2000).
11 F.3d 1270, 1274-75 (5th Cir. 1994) cert. denied 512 U.S. 1207 (1994).
Plaintiffs' respond with evidence supporting the following allegations regarding Schwab and Scheel's participation in their termination. Judge Scheel discussed firing Wallace in a meeting on May 5, 1999. Scheel and Schwab had Corlette, the Human Resources Chief, write a report at the request of the Commissioners on how Wallace's termination would be viewed. There is evidence Schwab and Scheel wanted Wallace and Kniss to be more lax in enforcing the TNRCC rules on septic systems. Also, there is evidence Schwab and Scheel met with the commissioner's legal counsel to discuss the termination of Wallace and Kniss. And there is evidence that Hornseth discussed the terminations with Schwab and Scheel. Also, Hornseth had told Wallace numerous times that Scheel wanted her terminated. Finally there is evidence of Schwab and Scheel's hostility towards Wallace and Kniss' handling of their job.
Wallace Depo., at. 122-23.
Hornseth Depo, at 95, 220, 231.
Plaintiffs have come forward with enough evidence to create a genuine issue of material fact concerning Schwab and Scheel's participation in their terminations. The Court notes that Harrington v. Harris, and Bream v. City of Garland, are not on point because they address employment actions that do not rise to the level of a constitutional deprivation. Plaintiffs are not arguing that Schwab and Scheel deprived them of their constitutional rights by criticizing them. Plaintiffs argue Schwab and Scheel deprived them of constitutional rights by terminating them. It is clear that termination is an adverse employment action for the purpose of a retaliation claim.
118 F.3d 359, 365-366 (5th Cir. 1997), cert denied 522 U.S. 1016 (1997).
205 F.3d 150, 158 (5th Cir. 2000), cert. denied 531 U.S. 816 (2000).
Harrington, 118 F.3d at 365-366.
Defendants also argue that even if Scheel recommended that Hornseth terminate Plaintiffs, under Beattie v. Madison County School District, Scheel cannot be liable under § 1983 because he did not terminate Plaintiffs himself. Defendants have mischaracterized Beattie. In Beattie a school teacher claimed liability from both the school board that terminated her and the Principal and the Superintendent that recommended to the school board that she be terminated. While there was evidence the Principal and the Superintendent recommended her termination on unconstitutional grounds, there was no evidence the School Board acted on unconstitutional grounds. Thus, Beattie could not prove any causation between her protected speech and her termination. In the instant case, however, Plaintiffs have pled sufficient facts to show a genuine issue of fact as to the causation between both Schwab and Scheel's actions and Plaintiffs' termination. Because Plaintiffs have shown a genuine issue of material facts exists as to causation, Defendants claim under Lukan v. North Forest ISD, and Burns-Toole v. Byrne, also fails.
See Beattie v. Madison County School District, 254 F.3d 595, 605 (5th Cir. 2001).
Supra, at 10.
183 F.3d 342, 346 (5th Cir. 1999), cert. denied, 529 U.S. 1019 (2000).
11 F.3d 1270, 1274-75 (5th Cir. 1994) cert. denied 512 U.S. 1207 (1994).
See supra, at 10.
Plaintiffs do not attempt to hold the individual defendants liable for actions or decisions with which they had no involvement, but rather seek to establish each Defendant's responsibility for his own actions. The Court finds that Plaintiffs pled with sufficient particularity facts establishing a causal connection between Defendants' actions and decisions and the alleged constitutional violations. The Court therefore holds that Plaintiffs' have met all pleading requirements in individual qualified immunity cases.
III. First Amendment Analysis
In the instant matter, the unconstitutional action alleged is retaliation for Plaintiffs' exercising of their First Amendment right to free speech. It is well established that a state may not discharge, discipline, or otherwise retaliate against a public employee for exercising his First Amendment right to free speech. In order to establish a constitutional claim for retaliation against the exercise of one's First Amendment rights, four elements must be shown: (1) the Plaintiffs must suffer an adverse employment decision; (2) the Plaintiffs' speech must involve a matter of public concern; (3) the Plaintiffs' interest in commenting on matters of public concern must outweigh the Defendants' interest in promoting efficiency; and (4) the Plaintiffs' speech must have motivated the Defendants' action.
Anderson, 184 F.3d at, 444 citing Rankin v. McPherson, 483 U.S. 378, 383 (1987).
Breaux, 205 F.3d at 156. See supra, at 9-13 for explanation of Schwab and Scheel's participation in Plaintiffs' termination.
Plaintiffs were terminated and thus suffered an adverse employment decision. Defendants argue that Plaintiffs have failed to specifically show what instances of speech are entitled to First Amendment protection. According to the Fifth Circuit's ruling in Foley v. University of Houston, Plaintiffs must identify the "precise speech" which forms the basis for the retaliation claim. Plaintiffs are required to be specific as to when statements were made, to whom they were made, whether they were oral or written, and the content of those statements. If Plaintiff cannot do so, Plaintiffs cannot overcome the defense of qualified immunity.
Harrington, 118 F.3d at, 365-366.
324 F.3d 310, 318 (5th Cir. 2003).
Foley, 324 F.3d at 318 (Plaintiff must give the precise identification of the speech as to which First Amendment protection is claimed, which would permit consideration of its content, context, and form as required by the Supreme Court. Id.).
Foley, 324 F.3d at 318.
Wallace and Kniss have alleged numerous instances of speech including daily conversations regarding TNRCC rules violations with their supervisors Hornseth and Ritzen. But for the purpose of meeting the standard articulated in Foley, the Court will analyze one instance of speech alleged by each Plaintiff. On March 16, 1999, Wallace sent a fax to James McCaine of the TNRCC stating that she believed she was being overruled regarding violations of the TNRCC rules. Wallace also alleges that she was told by her supervisor, Hornseth, not to contact the TNRCC and to keep problems "in-house." Kniss made a telephone call to Ken Graber of the TNRCC regarding Walker Chapman Countryside Construction's office permit. Kniss was also told to cease direct communication with the TNRCC, a fact undisputed by Defendants.
Wallace Depo., at 69; Exh. 20.
Wallace Affidavit, at para. 12.
Def's Mot. Summ. Jud., at 10.
Hornseth Depo, at 176.
Plaintiffs' speech also involved a matter of public concern. This case is similar to Warnock v. Pecos County Texas, decided by the Fifth Circuit. In Warnock the Plaintiff brought a First Amendment retaliation claim based on her termination as a county auditor for speaking out about violations of the law and various regulations. In addressing whether the plaintiff's speech in Warnock was a matter of public concern, the Fifth Circuit stated that "[t]here is perhaps no subset of `matters of public concern' more important than bringing official misconduct to light. By reporting specific wrongs and abuses within the county government, Warnock was attempting to improve the quality of government. Her allegations hardly suggest a merely personal concern for her working conditions, job security, and the like. The content, context, and form of Warnock's statements indicate that they addressed issues necessarily of concern to the public.'
116 F.3d 776, 779-80 (5th Cir. 1997).
116 F.3d 776, 779-80 (5th Cir. 1997) [internal citations omitted].
Like in Warnock, the Plaintiffs in the instant case were reporting specific violations of TNRCC rules by people within the government, in particular Plaintiffs' supervisors Hornseth and Ritzen. In addressing whether a public employee's speech is a matter of public concern, a Court must "decide whether the speech at issue in a particular case was made primarily in the plaintiff's role as citizen or primarily in his role as employee." If a plaintiff's statements concern a personal employment dispute, First Amendment protection will not apply. Like the plaintiff in Warnock, the Plaintiffs' speech in the instant case does not address Plaintiffs' own employment status. Thus, Defendants argument that Plaintiffs were speaking as employees rather than as citizens fails. Plaintiffs' speech in the instant matter went beyond the requirements of their job as they sought to report violations of environmental regulations by their supervisors. Plaintiffs' were speaking out on alleged violations of TNRCC rules for the installation of septic systems. These rules exist to protect underground water from contamination with sewage. Quite simply, Plaintiffs sought to bring official misconduct to light. This is a matter of public concern.
Warnock v. Pecos County Texas, 116 F.3d 776, 779-80 (5th Cir. 1997) [internal citations omitted].
See Warnock, 116 F.3d at 779-780; Terrell v. University of Texas System Police, 792 F.2d 1360, 1362 (5th Cir. 1986).
Foley v. University of Houston System, 324 F.3d 310, 317 (5th Cir. 2003).
See Wallace, 80 F.3d 1042, 1051 (5th Cir. 1996) (indicating that "speech made in the role as employee "can be of public concern when it "involv[es] the report of corruption or wrongdoing to higher authorities." Id.)
The Court must now decide if the Plaintiffs' interest in commenting on matters of public concern must outweigh the Defendants' interest in promoting efficiency. The Court must weigh three factors: (1) whether the speech was likely to generate controversy and disruption; (2) whether the speech impeded the general operation of the department; and (3) whether the speech affected the working relationships necessary to the proper functioning of County administration.
Breaux, 205 F.3d at 156.
Warnock, 116 F.3d at 780.
In Texas, health inspectors in each county take a course at Texas A M University If they successfully complete the course, they become "Designated Representatives" of the TNRCC. Health inspectors are expected to enforce the TNRCC ruled protecting underground water sources. Thus, health inspectors are an unusual case because their duty is not just to their supervisor. As stated by the Court in Warnock, in the "bulk of First Amendment cases brought by public employees, the governmental employer has a legitimate interest in terminating employees whose criticisms intrude on the workplace harmony that tends to facilitate the efficient operation of government functions." In this case, however, like in Warnock, Plaintiffs were not policymakers "hired to implement the agenda of the county or the judges." The job of health inspector, like the job of county auditor, "is not within that narrow band of fragile relationships requiring for job security loyalty at the expense of unfettered speech." Thus, because as health inspectors, Plaintiffs' duty is not just to their supervisor, but also to ensure that the county, its citizens, and installers, were following environmental regulations, the Court finds the balancing test tips in favor of protecting Plaintiffs' speech.
Ritzen Depo, at 9-10; Pls' Resp., Appendix, Summary of Facts, at 2.
Cf. Warnock, 116 F.3d at 70 (Stating that plaintiff presents an unusual case because the Texas legislature has assigned auditors the task of disrupting the workplace when its smooth operation conflicts with legal requirements or compromises the public's interest in fiscal responsibility. Id.).
Warnock, 116 F.3d at 779-80.
Warnock, 116 F.3d at 780.
Gonzalez v. Benavides, 712 F.2d 142, 150 (5th Cir. 1983).
Defendants argue that disruptive conduct by Plaintiffs' impeded the efficiency of the office. The conduct Defendants refer to is not the alleged protected speech thus it does not belong in this prong of the test for determining if a First Amendment retaliation claim can be made. Plaintiffs' conduct not related to protected speech is addressed in the fourth prong of the test concerning whether Plaintiff's were terminated for a reason other than their protected speech. See supra, at 16.
Defendants argue that Plaintiffs' speech was not the motivating factor in their termination. Defendants argue that Plaintiffs were terminated because of their uncooperative and disruptive attitude. Defendants allege that Plaintiffs engaged in the following disruptive behavior: alienating coworkers by intentionally isolating themselves, whispering, and refusing to conform to routine office procedures, refusing to interact with coworkers, positioning desks so as to segregate themselves from the rest of the office, refusing to pick up ringing phones, ignoring citizens who came into the office, impeding a sense of camaraderie, insisting on using the side door, resisting wearing uniforms, and requiring supervisors to put all communications in writing. Plaintiffs have responded with information from affidavits and depositions from co-workers contradicting Defendants' claim that Plaintiffs were difficult to work with.
Defs' Mot. for Summ. Jud., at 20.
See Pls' Resp. at 15-18.
Defendants claim that this case is analogous to McAdams v. Matagorda County Appraisal District, in which the Fifth Circuit held the plaintiff could not show that his termination was due to speech. In that case there was substantial evidence that plaintiff's working relationship with his employer had deteriorated and plaintiff was rude. While it is true that Plaintiffs' working relationship with Defendants in the instant case appears to have deteriorated, the deterioration stems from Plaintiffs' speech regarding environmental rules violations, not for doing outside work, as in McAdams. Also, affidavits and depositions provided by Plaintiffs show that there is a genuine issue of material fact as to whether Plaintiffs' speech was a motivating factor in their termination.
798 F.2d 842 (5th Cir. 1986).
McAdams, 798 F.2d at 846.
IV. Qualified Immunity
Qualified Immunity shields from liability for civil damages government officials performing discretionary functions "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." The qualified-immunity doctrine has emerged in consequence of the need to balance two rival interests: "One interest is the compensation of persons whose federally protected rights have been violated. Opposing this is the fear that personal liability will inhibit public officials in the discharge of their duties."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982); see also Thompson v. Upshur County, 245 F.3d 447, 456 (5th Cir. 2001).
Johnston v. City of Houston, 14 F.3d 1056, 1059 (5th Cir. 1994).
A defendant pleading qualified immunity must first show that he is a governmental official who was acting within the scope of his discretionary authority at all relevant times. Thus, he must demonstrate that "his actions were undertaken pursuant to the performance of his duties and within the scope of his authority." Significantly, so long as a defendant is acting within the scope of his authority, even a strictly ministerial act will fall within the ambit of discretionary function. In addition, a defendant's actions would be within the limits of his discretionary authority if undertaken to effectuate a proper purpose.
Felton v. Polles, 315 F.3d 470, 477 (5th Cir. 2002) (quoting Pierce v. Smith, 117 F.3d 866, 871-72 (5th Cir. 1997) (citation omitted)).
Barker v. Norman, 651 F.2d 1107, 1121 (5th Cir. 1981).
If a court is persuaded that the defendant is a governmental official who was acting within the scope of his discretionary authority, the burden then shifts to the plaintiff, who is charged with "establishing that the official's allegedly wrongful conduct violated clearly established law." The familiar bifurcated analysis then follows. First, the Court must enquire as to "whether the plaintiff has alleged a violation of a clearly established constitutional [or federal statutory] right." If he has, the Court then must decide whether "the defendant's conduct was objectively unreasonable in the light of the clearly established law at the time of the incident." Only if the plaintiff survives the first step, should a court proceed to the second step, which, as the Fifth Circuit has noted, itself necessitates two inquiries. Thus, the plaintiff must prove that the constitutional or federal statutory right allegedly violated was clearly established at the time of the incident, and, if so, that the conduct of the defendant was objectively unreasonable in light of the clearly established law.
Felton, 315 F.3d at 477.
Id. (quoting Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998)).
Id. (quoting Hare, 135 F.3d at 325).
Id.
Though "a plaintiff may allege the claimed deprivation at a higher level of generality," the "right . . . alleged to have [been] violated must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." In this regard, qualified immunity would only be withheld if " all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the United States Constitution or the federal statute as alleged by the plaintiff." In keeping with this standard, "even officials who reasonably, but mistakenly, commit a constitutional violation are entitled to immunity." The invocation of qualified immunity is often accompanied by language taken from Malley v. Briggs, a case in which the United States Supreme Court noted that the doctrine was devised to protect "all but the plainly incompetent or those who knowingly violate the law."
Id. (citing Thompson, 245 F.3d at 459).
Id. at 477-78 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).
Id. at 478 (quoting Thompson v. Upshar County, 245 F.3d 447, 457 (5th Cir. 2001) (emphasis in original)).
Glenn v. City of Tyler, 242 F.3d 307, 312 (5th Cir. 2001).
475 U.S. 335 (1986).
The relevant First Amendment law was clearly established at the time the terminations occurred. Terminating a worker for speaking out on violations of environmental regulations and the threat of contamination of groundwater is objectively unreasonable. Plaintiffs were terminated on May 25, 1999. Case law prior to that date contained many discussions of what sort of speech implicates public concerns. The Defendants had the benefit of the Fifth Circuit opinions in Warnock v. Pecos County Texas, and Wilson v. University of Texas Health Center. In Wilson, the Court explained that a public employee can make a statements both as an employee and as a citizen. The plaintiff in Wilson was a police officer who reported sexual abuse to her superiors. The plaintiff in Warnock was the county auditor who brought forth information of various violations of laws and administrative regulations. Like both the plaintiffs in Wilson and Warlock, the Plaintiffs in the instant case each "had a stake as an individual citizen in having [rules violations] stopped, regardless of whether her reports also coincided with her job responsibilities." Also, at the time Defendants made their decision, the law was clear that public officials must "engage in McBee-Pickering-Connick balancing before taking disciplinary action." Thus, "in light of the purposes of [Plaintiffs'] office, we conclude that First Amendment law at the beginning of [May 1999] clearly established that county officials may not terminate a [health inspector] for diligently monitoring [septic systems] and speaking out about genuine [safely] problems."
Cf. Warnock, 116 F.3d at 779-80 (firing a county auditor for reporting violations of the law is objectively unreasonable); Frazier v. King, 873 F.2d 820, 827 (5th Cir. 1989) (qualified immunity denied for a warden who fired a registered nurse for reporting violations of nursing practices).
116 F.3d 776, 782 (5th Cir. 1997).
973 F.2d 1263, 1268-70 (5th Cir. 1992), cert. denied, 507 U.S. 1004 (1993).
Warnock, 116 F.3d at 782.
Warnock, 116 F.3d at 782 quoting Click v. Copeland, 970 F.2d 106, 112 (5th Cir. 1992).
Warnock, 116 F.3d at 782.
However, "clearly established law will not defeat qualified immunity if an objectively reasonable view of the facts might lead an official not to realize that he was breaking the law. This case "does not present circumstances that suggest a misunderstanding of the facts." According to Plaintiffs' particularized allegations, Schwab, Scheel and Hornseth had ample information about Plaintiffs' efforts of enforcement of TNRCC rules and "based their decision on what they knew about [their] aggressive enforcement efforts." Thus, based on the pleadings and briefings, Defendants acted objectively unreasonably in violating Plaintiffs' rights as outlined by clearly established law. Defendants are therefore not entitled to qualified immunity.
Warnock, 116 F.3d at 782 [internal citations omitted].
Warnock, 116 F.3d at 782 [internal citations omitted].
Warnock, 116 F.3d at 782 [internal citations omitted].
III. Conclusion
Based on the foregoing, the Court DENIES Defendants' Motion for Summary Judgment (Docket no. 124).