Hawkland v. Hall ( 2021 )

Case: 20-10901 Document: 00515903425 Page: 1 Date Filed: 06/17/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
June 17, 2021
No. 20-10901 Lyle W. Cayce
Clerk
Robert A. Hawkland,
Plaintiff—Appellee,
versus
Burke Hall, individually and in his capacity as President of Board
of Trustees of the Grand Prairie Independent School
District; Vicki Bridges, individually and as Assistant
Superintendent of the Grand Prairie Independent
School District; Phil Jimerson, individually and in his capacity as
Interim Assistant Superintendent of Operations of the
Grand Prairie Independent School District,
Defendants—Appellants.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:19-CV-1822
Before Higginbotham, Stewart, and Wilson, Circuit Judges.
Per Curiam:*
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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Robert Hawkland brought 42 U.S.C. § 1983 claims against his former
employer, the Grand Prairie Independent School District (the “District”),
for employment retaliation in violation of the First Amendment. Suing the
District, two administrators, and a member of the Board, Hawkland alleged
he was improperly terminated because of statements he made during an
internal investigation into the District’s finances. Defendants filed motions
to dismiss for failure to state a claim, asserting that Hawkland spoke as an
employee, such that his statements were not protected speech. Alternatively,
defendants asserted that qualified immunity barred his claims against them.
The district court denied defendants’ motions. Concluding that Hawkland’s
speech was made pursuant to his official duties, we REVERSE the court’s
denial of defendants’ motions to dismiss and REMAND for entry of
judgment in favor of defendants.
I.
In 2017, District Superintendent Susan Hull faced public criticism for
residing in a home purchased and renovated with District funds. Responding
to rumors of financial impropriety, the District’s Board of Trustees hired an
outside law firm to investigate the District’s management and accounting
policies—including the purchase and renovation of Hull’s home. In May
2018, the firm concluded its investigation. Though it publicly released only
a portion of its final report, the firm did not find any actionable misconduct.
Hawkland was an employee of the District for approximately two
decades. In the last five years of his tenure, he was a manager of the District’s
HVAC system. As part of the internal investigation, Hawkland and other
District employees were interviewed by the investigating law firm.
According to the complaint, the Superintendent’s office required
Hawkland’s participation, and the firm assured him there would be no
retaliation for truthful statements. The firm and a member of the District’s
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Board asked Hawkland questions, and his answers negatively reflected on
Hull and her use of District resources.
After the investigation concluded, Hawkland’s responses were
conveyed to Hull and Burke Hall, the current President of the Board.1
Hawkland was thus revealed as a source of information about the District’s
purported mismanagement of funds. Thereafter, he was excluded from
ordinary meetings, his department’s budget was reduced, and Vicki
Bridges—then Assistant Superintendent of Operations—instructed him to
refrain from speaking on school district practices. Phil Jimerson, former
Interim Assistant Superintendent of Operations, also inquired into
Hawkland’s management of the HVAC system, which Hawkland alleges was
a front to find justification for terminating his employment. About a year
after the investigation concluded, Hull fired Hawkland in June 2019 after he
refused to resign. No criticisms of his performance or behavior, nor
disciplinary procedures, were mentioned.
Hawkland filed his complaint in July 2019 and an amended complaint
in October 2019 (the operative complaint for this appeal). He asserts
multiple § 1983 claims. First, he alleges the District is liable for First
Amendment employment retaliation. He maintains the District followed an
informal policy or custom of preventing its employees from “disclosing or
discussing any matter that might cast the District or Superintendent Hull in
a negative light” and “retaliate[ed] against those who did by taking or
threatening to take adverse employment action.” Second, and on the same
1
The amended complaint does not specify if Hall was President or Vice President
of the Board when he learned of Hawkland’s statements.
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alleged facts, he brings First Amendment retaliation claims against Hall,
Bridges, and Jimerson in their individual capacities.2
The individual defendants filed motions to dismiss under Federal
Rule of Civil Procedure 12(b)(6), asserting Hawkland failed to a state a claim
for First Amendment retaliation and interposing the defense of qualified
immunity. In August 2020, the district court denied their motions.
Defendants then filed this interlocutory appeal.
II.
The denial of a motion to dismiss predicated on qualified immunity is
an “immediately appealable [collateral] order.” Zapata v. Melson, 750 F.3d
481, 484 (5th Cir. 2014); see Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 193–
94 (5th Cir. 2009). We have pendant appellate jurisdiction when an
appealable order is “inextricably intertwined” with an unappealable order.
Thornton v. Gen. Motors Corp., 136 F.3d 450, 453–54 (5th Cir. 1998). Here,
the district court’s one-page order denying the defendants’ motions to
dismiss made no express mention of qualified immunity, but the court’s
ruling impliedly rejected the defendants’ alternative defense. When a district
court denies a motion to dismiss that includes the defense of qualified
immunity, and thereby holds the plaintiff properly stated a claim for First
Amendment retaliation, we exercise jurisdiction over both issues. Anderson
v. Valdez, 845 F.3d 580, 588–89 (5th Cir. 2016).
2
The amended complaint asserts Hall, Bridges, and Jimerson were “acting
individually . . . as well as in their official positions with the School District” in terminating
Hawkland; the defendants’ brief states these three were sued in their “individual and
official capacities.” Any claims against Hall, Bridges, and Jimerson in their official
capacities are duplicative of the claim against the District itself. See Rayborn v. Bossier Par.
Sch. Bd., 881 F.3d 409, 417 (5th Cir. 2018) (“[S]uits against officials in their official
capacities ‘generally represent only another way of pleading an action against an entity of
which an officer is an agent.’” (quoting Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)).
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Hawkland contests our jurisdiction to consider whether he adequately
pled a retaliation claim. He maintains that the contextual aspects of his
speech (i.e., whether the statements were “within the scope of his job”) are
disputes of fact. But this mistakes the nature of our review. When a denial
of qualified immunity is appealed, “we are restricted to determinations of
questions of law and legal issues, and we do not consider the correctness of
the plaintiff’s version of the facts.” Club Retro, 568 F.3d at 194 (citation
omitted). While we thus accept all of Hawkland’s well-pled factual
allegations as true and draw all reasonable inferences in his favor,
determining whether he spoke as an employee or as a citizen is a reviewable
question of law. See, e.g., Graziosi v. City of Greenville, 775 F.3d 731, 736 (5th
Cir. 2015).
We consider de novo the sufficiency of both Hawkland’s First
Amendment retaliation claim and defendants’ assertion of qualified
immunity. Anderson, 845 F.3d at 589. With respect to the former, a pleading
must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a)(2); see Arnold v.
Williams, 979 F.3d 262, 267 (5th Cir. 2020) (“Section 1983 claims
implicating qualified immunity are subject to the same Rule 8 pleading
standard set forth in Twombly and Iqbal as all other claims . . . .”). In other
words, Hawkland’s complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and
citation omitted). Facial plausibility requires he plead “factual content that
allows the court to draw the reasonable inference that the defendant[s are]
liable for the misconduct alleged.” Id.5
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III.
We first address whether Hawkland sufficiently alleged a § 1983 claim
against Hall, Bridges, and Jimerson for First Amendment employment
retaliation. If he failed to do so, we need not further address the defendants’
invocation of qualified immunity. After all, to overcome a qualified immunity
defense, a plaintiff must plead facts showing “(1) that the official violated a
statutory or constitutional right, and (2) that the right was clearly established
at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735
(2011) (internal quotation marks and citation omitted). Some opinions, as
well as defendants’ brief, discuss First Amendment retaliation claims under
prong one of the qualified immunity analysis. See, e.g., Rayborn, 881 F.3d at
417–18. For analytic clarity, we separate the two issues, even if the analysis
leads substantively to the same end. See Anderson, 845 F.3d at 590 (assessing
the elements of a § 1983 claim for employment retaliation before discussing
qualified immunity); Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016)
(same).
A.
“To succeed in a First Amendment retaliation claim under § 1983, a
public employee must show: (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.” Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015) (internal
quotation marks and citation omitted). Defendants contest only the second
element, contending Hawkland spoke as an employee—not as a citizen—
during the District’s internal investigation.
The second element of the First Amendment retaliation analysis
encompasses two requirements: an employee must have spoken as a citizen
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and that speech must have been on a matter of public concern. The first
requirement is a threshold inquiry into whether an employee was speaking as
a citizen or “pursuant to [the employee’s] official duties.” Garcetti v.
Ceballos, 547 U.S. 410, 421 (2006); see Hurst v. Lee County., 764 F.3d 480,
484 (5th Cir. 2014). If an employee’s speech was made pursuant to his
official duties, he is not entitled to First Amendment protection even if he
spoke on a matter of public concern. Anderson, 845 F.3d at 592; see Howell,
827 at 522–23 (“[I]nstead of asking only if the speech at issue was on a matter
of public concern, a court must first decide whether the plaintiff was speaking
as a citizen disassociated with his public duties.”). Again, defendants do not
dispute Hawkland’s speech pertained to a matter of public concern; they only
challenge whether he spoke as a citizen or employee. So we turn to that
analysis.
In determining whether an employee spoke pursuant to his official
duties, the Supreme Court has emphasized the critical question is “whether
the speech at issue is itself ordinarily within the scope of an employee’s
duties, not whether it merely concerns those duties.” Lane v. Franks, 573
U.S. 228, 240 (2014). In Lane, a college administrator testified to a grand
jury, under subpoena, about a financial fraud investigation at his university.
Id. at 232–33. He was fired thereafter, and he brought a § 1983 employment
retaliation claim. Id. at 234. Holding Lane’s grand jury testimony was
protected under the First Amendment, the Supreme Court reasoned “the
mere fact that a citizen’s speech concerns information acquired by virtue of
his public employment does not transform that speech into employee—
rather than citizen—speech.” Id. at 240. Rather, Lane’s speech was made
as a citizen because it fell outside his “ordinary job duties” and originated in
an obligation “to the court and society at large . . . to tell the truth.” Id. at
238.
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Regarding Lane, we have cautioned against a strict interpretation of
the term “ordinary job duties,” insisting the question of whether an
employee’s speech was pursuant to his official duties remains “a practical
inquiry.” Culbertson v. Lykos, 790 F.3d 608, 620 (5th Cir. 2015); Anderson,
845 F.3d at 596; see Gibson v. Kilpatrick, 773 F.3d 661, 667–68 (5th Cir. 2014)
(noting Lane presented “no occasion for the Court to refine the standard for
determining when an employee speaks pursuant to his official duties”). To
that end, we consider a number of factors to determine whether an
employee’s speech was made pursuant to, and was ordinarily within, his
official duties.
First, while an employee’s job description is relevant, it is not
dispositive; we look to it insofar as it is “instructive” in the analysis. Gibson,
773 F.3d at 671. More importantly, if the employer directed the employee’s
speech, and the employer was entitled to exercise such control, then it was
likely made pursuant to the employee’s official duties. Anderson, 845 F.3d at
596. We similarly look to whether the speech, even if outside the employer’s
control, was still “intended to serve any purpose of the employer.” Corn v.
Miss. Dep’t of Pub. Safety, 954 F.3d 268, 277 (5th Cir. 2020) (citation
omitted); see Garcetti, 547 U.S. at 421–22 (“Restricting speech that owes its
existence to a public employee’s professional responsibilities does not
infringe any liberties the employee might have enjoyed as a private citizen.”).
While our focus is on the role of the speaker and not the content of the
speech, we will also consider the content if it relates to the employee’s official
duties. See Davis v. McKinney, 518 F.3d 304, 314 (5th Cir. 2008) (comparing
different sections of employee’s internal complaint letter to her official
position and noting “some of [the letter] clearly relates to [her] job as an
internal auditor, other parts do not”). Broader contextual factors include
whether the employee’s speech was made up the internal chain of command
or to an outside actor (such as the media), if the employee spoke to others at
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his workplace or kept the information confidential, and whether there is an
analogue to speech by citizens—that is, whether the speech was of the kind
“engaged in by citizens who do not work for the government.” Paske v.
Fitzgerald, 785 F.3d 977, 984 (5th Cir. 2015) (citation omitted); see Gibson,
773 F.3d at 670 (considering chain of command); Howell, 827 F.3d at 524
(“[T]he confidential nature of [plaintiff’s] speech alone suggests that it was
not part of his ‘ordinary’ professional duties.”).
Defendants largely rest their appeal on two cases that they contend
dictate any statements made by an employee during an internal investigation
were made pursuant to the employee’s official duties. See Rodriguez v. City
of Corpus Christi, 687 F. App’x 386 (5th Cir. 2017); Caleb v. Grier, 598 F.
App’x 227 (5th Cir. 2015). Notwithstanding that these are unpublished
opinions, and thus not precedential, we also disagree they stand for such a
categorical proposition. That said, both opinions do concern internal
investigations. In Caleb, we observed that “assisting in an employer’s
investigation into workplace theft is ordinarily within the scope of an
employee’s job duties.” 598 F. App’x at 236. We applied the same reasoning
in Rodriguez, which involved an investigation into a workplace confrontation.
687 F. App’x at 390.
In both cases, however, we recognized multiple factors showing the
plaintiffs acted as employees and not as citizens. Each considered, inter alia,
that the employer directed the plaintiff to participate in the investigation and
the plaintiff limited his or her speech to the chain of command. Caleb, 598 F.
App’x at 236; Rodriguez, 687 F. App’x at 390. Indeed, to hold that an
employee spoke pursuant to official duties solely by virtue of his involvement
in an employer’s internal investigation would unduly treat a single factor as
dispositive. See Tregre, 787 F.3d at 325 (considering multiple factors in
holding plaintiff acted in his official duties as police Chief Deputy when he
was interviewed as part of an internal investigation).
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B.
Applying this discussion to Hawkland’s complaint, we conclude
Hawkland’s statements during the District’s internal investigation were
made pursuant to his official duties. Granted the subject-matter of the
investigation was perhaps only tangentially related to Hawkland’s work as a
manager of the HVAC system, he still participated upon the directive of his
employer and his speech unequivocally served his employer’s purpose. See
Anderson, 845 F.3d at 596; Corn, 954 F.3d at 277. Hawkland states he was
“forced to cooperate,” but he does not challenge the Superintendent’s
authority to require his participation. Cf. Lane, 573 U.S. at 239
(“[O]bligations as an employee are distinct and independent from the
obligation, as a citizen, to speak the truth. That independent obligation
renders sworn testimony speech as a citizen and sets it apart from speech
made purely in the capacity of an employee.”).
Moreover, Hawkland never expressed his criticisms of Hull to anyone
outside his employment, let alone outside those with whom he spoke during
the investigation. He did not, for instance, attempt to publicize his
complaints, share his opinion publicly, or otherwise discuss the matter with
news media or the greater public. See Williams v. Dall. Indep. Sch. Dist., 480
F.3d 689, 694 n.2 (5th Cir. 2007) (“This is not a case where [plaintiff] wrote
to the local newspaper or school board with his athletic funding concerns.”);
cf. Graziosi, 775 F.3d at 737 (holding police officer’s posts on Facebook, while
off duty and from her home computer, was speech made as a citizen). Indeed,
in the context of Hawkland’s participation in an employer-initiated internal
investigation, it is difficult to imagine a citizen’s comparable speech-related
activity. See Garcetti, 547 U.S. at 422 (“Contrast, for example, the
expressions made by [an employee] whose letter to the newspaper had no
official significance and bore similarities to letters submitted by numerous
citizens every day.”).
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In sum, far and away from an independent obligation to our legal
system or society at large, Hawkland’s speech was made in the limited
context of the District’s internal investigation. It originated from his
employer’s request for his cooperation, and it lacked an analogue to speech
normally made by citizens. For these reasons, the district court erred in
holding Hawkland adequately pleaded a First Amendment retaliation claim.
It follows that we need not further address the defendants’ assertion of
qualified immunity.
***
Accordingly, we REVERSE the district court’s denial of defendants’
Rule 12(b)(6) motions to dismiss Hawkland’s § 1983 claims against them.
We REMAND for entry of judgment in favor of Hall, Bridges, and Jimerson
in their individual capacities.
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