Lubbe v. Milanovich ( 2023 )

Case: 22-50686 Document: 00516932346 Page: 1 Date Filed: 10/16/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 16, 2023
No. 22-50686 Lyle W. Cayce
____________ Clerk
Darren Lubbe,
Plaintiff—Appellant,
versus
Mark Milanovich; Christopher Mulch; Brandon Negri;
Jeoff Williams; Thomas G. Ruocco; Steven C. McCraw;
Christopher Brock,
Defendants—Appellees,
______________________________
Darren Lubbe,
Plaintiff—Appellant,
versus
Steven McCraw, Director of DPS, Austin, Texas
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Western District of Texas
USDC Nos. 1:18-CV-1011, 1:19-CV-1073
______________________________
Before Smith, Southwick, and Higginson, Circuit Judges.
Case: 22-50686 Document: 00516932346 Page: 2 Date Filed: 10/16/2023
No. 22-50686
Per Curiam: *
Darren Lubbe had been a special agent in the Criminal Investigation
Division of the Texas Department of Public Safety (“DPS”). He sued
various individuals within DPS alleging First Amendment retaliation and
Fourteenth Amendment due process and equal protection claims under
42 U.S.C. § 1983. The district court granted summary judgment in favor of
all defendants. We AFFIRM.
We review a district court’s grant of summary judgment de novo.
Lewis v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 629–30 (5th
Cir. 2011). Summary judgment is proper when “there is no genuine dispute
as to any material fact.” FED. R. CIV. P. 56(a). Lubbe presents five issues on
appeal.
First, Lubbe argues that DPS Director Steven McGraw violated his
First Amendment rights by constructively discharging him. Second, he
argues that all the defendants engaged in retaliation violative of the First
Amendment after Lubbe reported conduct that was allegedly criminal. To
establish a First Amendment retaliation claim, Lubbe “must show that (1) he
suffered an adverse employment action; (2) his speech involved a matter of
public concern; (3) his interest in speaking outweighs the employer’s interest
in promoting efficiency in the workplace; and (4) his speech motivated the
employer’s adverse employment action.” Gibson v. Kilpatrick, 838 F.3d 476,
481 (5th Cir. 2016) (quotation marks and citation omitted). We agree with
the district court that Lubbe did not show that he spoke “as a citizen on a
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.4.
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matter of public concern.” Johnson v. Halstead, 916 F.3d 410, 422 (5th Cir.
2019). Lubbe’s failure to satisfy that part of the claim allows dismissal.
Qualified immunity is appropriate either when the constitutional right
being asserted was not violated or the allegedly violated right was not clearly
established at the time of the claimed violation. Benfield v. Magee, 945 F.3d
333, 337 (5th Cir. 2019). We hold that all the defendants were properly
granted qualified immunity from Lubbe’s First Amendment claims.
Third, Lubbe asserts the defendants violated his substantive due
process rights when he was discharged. To succeed on a substantive due
process claim, Lubbe must prove “(1) that he had a property interest/right
in his employment, and (2) that the public employer’s termination of that
interest was arbitrary or capricious.” Lewis, 665 F.3d at 630 (quotation marks
and citation omitted). We find the evidence demonstrates beyond any
genuine dispute that Lubbe’s removal was neither arbitrary nor capricious.
We have authority to affirm a district court on any basis supported by the
record. United Sates v. Barlow, 17 F.4th 599, 602 (5th Cir. 2021). Thus,
independent of qualified immunity on which the district court dismissed the
claim, we conclude this claim fails on its merits.
Fourth, Lubbe argues the defendants violated his equal protection
rights through religious discrimination. On appeal, Lubbe insists he is not
bringing a “class-of-one” claim. That being conceded, this claim was
properly dismissed because Lubbe offered no evidence of any similarly
situated employee who was treated differently. See Taylor v. Johnson, 257
F.3d 470, 473 (5th Cir. 2001).
Fifth and finally, Lubbe seeks reversal of the denial of his deliberate
indifference claim against Director McCraw and various DPS
commissioners. Lubbe’s notice of appeal, though, only referenced the
district court’s summary judgment order, which did not address any claim
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for deliberate indifference. “[W]here the notice of appeal is from a final
judgment, we have held that an appeal from a final judgment sufficiently
preserves all prior orders intertwined with the final judgment.” Jordan v.
Ector Cnty., 516 F.3d 290, 294 (5th Cir. 2008) (quotation marks and citation
omitted). Because Lubbe did not appeal from a final judgment but from a
summary judgment order, “we are without jurisdiction to hear challenges to
other rulings or orders not specified in the notice of appeal.” Id. (quotation
marks and citation omitted).
AFFIRMED
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