Breaux v. City of Garland

Revised March 15, 2000
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-10638
ALLEN BREAUX AND JOE AMBROGIO,
Plaintiffs-Appellees/Appellants,
v.
CITY OF GARLAND, ET AL,
Defendants,
CITY OF GARLAND,
Defendant-Appellee,
TERRY HENSLEY AND RON HOLIFIELD
Defendants-Appellants.
Appeals from the United States District Court for the
Northern District of Texas
February 23, 2000
Before JONES and WIENER, Circuit Judges, and WALTER*, District
Judge.
EDITH H. JONES, Circuit Judge:
*
District Judge of the Western District of Louisiana, sitting by
designation.
This case involves the First Amendment retaliation claims
of two police officers against the City of Garland (“City”), its
former Police Chief, and its former City Manager. Officers Allen
Breaux and Joe Ambrogio (the “Plaintiffs”) argue that Terry Hensley
and Ron Holifield (the “individual Defendants”), and later the
City, violated 42 U.S.C. § 1983 by retaliating against the
Plaintiffs for making public allegations of corruption in the
Garland Police Department.
The jury found the individual Defendants liable, and even
after a large remittitur was accepted by the Plaintiffs, the
district court entered judgment exceeding $8 million, plus
attorneys’ fees, for the Plaintiffs. Both sides have appealed.
We conclude that the judgment is fatally flawed because the
Plaintiffs failed to prove that official retaliation against them
was sufficiently serious to constitute a constitutional injury. No
other reversible error has been raised.
I. FACTUAL BACKGROUND
This case is factually complex, as evidenced by the
parties’ continuing disagreement about what happened in the City of
Garland and the Garland Police Department between 1992 and 1994.
The following review of the facts is guided by the jury verdict
favoring Breaux and Ambrogio. In the beginning of 1992, the City
hired Holifield as its City Manager. The Garland City Council
instructed Holifield to hire a new police chief from outside the
2
department. Holifield ultimately hired Hensley, who started
working for the City in April 1992. During the summer of 1992,
Hensley contacted the FBI’s Dallas office to discuss possible land
acquisitions and flips made by members of the City administration.
In October 1992, Hensley met FBI Agent Largent, the
supervisor of the white collar crime squad for public corruption,
to discuss the land deals over lunch. Two other Garland police
officers, Jody Lay (“Lay”) and Larry Wilson (“Wilson”), were
present at this meeting. During the conversation, it became clear
that the FBI was beginning to investigate the possible involvement
of some current and former council members in two City of Garland
real estate transactions. According to Wilson, Hensley conducted
the meeting and told the FBI agent who and what Hensley wanted
investigated. The subjects included former Garland mayor Billy
Earl Tomlinson (“Tomlinson”); former City Councilman James Ratliff
(“Ratliff”); and Garland Councilman Vernon Gaston (“Gaston”).1 Lay
continued to assist the FBI until late 1992 when Officer Joe Harn
(“Harn”) took over for Lay. The FBI initiated a second
investigation concerning possible Garland public corruption in
relation to a landfill deal between the City and Waste Management,
1
According to the Plaintiffs, Ratliff, Gaston, and Tomlinson were all
close friends and political allies. Wilson was also a good friend of Tomlinson.
The Plaintiffs contend that Hensley instructed the FBI to investigate these
individuals because they were “political enemies” of Hensley. The Plaintiffs
also assert that Holifield played a significant role in the FBI investigation by
acting as a “confidential informant” for the FBI. Holifield participated in the
investigation at the request of the FBI, before he made the statements that serve
as the basis for the Plaintiffs’ § 1983 claim.
3
Inc., which was allegedly brokered by Ratliff and Gaston.
During the summer of 1992, Hensley put Lay in charge of
the Intelligence Unit of the Department. Hensley told Lay that he
was concerned about the current direction of the Unit as well as
the performance of the two officers in the Unit. Hensley was
particularly concerned with Breaux, who Hensley thought devoted too
much of his time to Asian gangs. Lay apparently shared these
concerns; in a September 11, 1992, memo to Hensley, Lay requested
that Breaux be transferred out of the Intelligence Unit.
Breaux was then a 20-year veteran officer. Officer
Breaux testified that he asked to be transferred back to patrol
duty after Lay informed him, during a truck ride in the country,
that Hensley and Lay “were redirectionalizing the Intelligence Unit
to start doing political investigations for Charlie Hinton, the
city attorney, and members of the city council.”2 Breaux was
unwilling to engage in “political investigations” instituted by the
new police chief. Although Breaux contemporaneously reported his
conversation with Lay to Lieutenant David Swavey, he did not
otherwise pursue the matter.
After being transferred out of the Intelligence Unit,
Breaux remained on patrol duty until late 1993. In November 1993,
Breaux received a poor performance review from his supervisor and
2
Lay contends that he went with Breaux to discuss Lay’s recommendation
in the memo. Lay maintains that during the ride he said only that the Unit would
handle “high level ‘public corruption’ cases;” Lay denies any discussion of
political investigations.
4
was assigned to front desk duty at the Department.3
In the Spring of 1994, Officer Breaux, newly-elected
vice-president of the Garland Police Officers Association (“GPOA”),
told Detective Ambrogio, the GPOA president, about the previous
attempt to recruit him for political investigations. Shortly
thereafter, the GPOA conducted a survey of all Department employees
to identify morale problems and to determine how to overcome any
such problems. Upon learning of the survey, Chief Hensley became
very upset and upbraided Ambrogio about it.
In March 1994, Holifield met with the GPOA Board to
discuss the survey. During this meeting, Breaux first revealed to
the City Manager the alleged illegal political investigations being
run by Chief Hensley. Breaux also told Holifield that the station
was wired so that a former police chief could monitor any telephone
conversation in the building. The GPOA Board members were
concerned that someone might try to monitor their calls after the
results of the survey were published. After Breaux mentioned the
alleged investigations, Holifield immediately ordered that any
ongoing investigations were to remain confidential. Holifield also
expressed his concern with GPOA tactics and allegedly threatened to
“destroy” the GPOA if it acted “politically” with respect to these
allegations or the survey results. But Holifield offered to work
3
Breaux’s supervisor reported that Breaux would not adequately enforce
traffic laws because Breaux questioned the legality of (1) requiring people to
have driver’s licenses and (2) confiscating weapons.
5
with the GPOA if the GPOA would keep politics out of the
Department. With the apparent approval of Breaux and Ambrogio,
Holifield agreed to investigate the GPOA allegations. Toward this
end, Holifield reported the allegations to Hensley.
At this point, the retaliation began. Hensley informed
Lay of the allegations of politically motivated investigations, and
Hensley brought an Internal Affairs charge, investigation I/A 94-
12, against Breaux for making false statements -- about the
investigations.
Soon thereafter, Holifield discovered that film was
missing from a secret camera, which had been installed in his
office to catch suspected intruders. Realizing that police
officers would recognize the hidden camera and knowing that the
GPOA Board had been in his office for the March 1994 meeting,
Holifield told Hensley about the missing film. Hensley initiated
Internal Affairs investigation I/A 94-13 against all the GPOA Board
members to determine if they had stolen the film.4
Detective Ambrogio, on the advice of a lawyer from the
Combined Law Enforcement Association of Texas (“CLEAT”), then held
a press conference, where he, the lawyer, and a City Councilman who
was one of the targets of the alleged investigations, made
4
After the March 1994 meeting in Holifield’s office, Gaston admitted
that someone had told him about the hidden camera, but Gaston refused to identify
who it was. The investigation of all the officers present was narrowed to an
investigation of Ambrogio for interfering with an investigation and revealing
confidential information. Although the ensuing investigation failed to determine
who stole the film, Ambrogio later admitted that he had made the unauthorized
disclosure to Gaston.
6
expansive allegations about illegal political investigations being
conducted by Hensley and Holifield.5 Relying on statements made by
Breaux during the meeting in Holifield’s office, Ambrogio and the
others also alleged that the Department was conducting electronic
surveillance of its employees since the phones in the Department
were bugged. The CLEAT attorney, Bob Hasty, went so far as to
inquire whether there is “in fact, a Gestapo type of ... secret
intelligence organization that is doing political investigations of
police officers.”6 Hasty further propagated Breaux’s allegations
in letters to law enforcement authorities in the state. These
public statements led to another Internal Affairs investigation,
I/A 94-14, which focused on Ambrogio’s possible violation of
several General Orders of the police department. Investigators
recommended that the charges in 94-14 be sustained and the Chain of
Command Board agreed.
As part of the investigations, Breaux and Ambrogio were
both questioned on several occasions, and Breaux was required to
take a polygraph administered by the Department. The Internal
Affairs investigations concluded that Breaux and Ambrogio had lied
5
Ambrogio first received notice that he would be questioned in I/A 94-
13 on April 18, 1994. After consulting with the CLEAT attorney, Ambrogio called
the GPOA press conference on April 20, 1994.
6
During the press conference, CLEAT and the GPOA requested an external
investigation into the Department’s activities. The Texas Rangers investigated
Hensley’s conduct in May 1994 and reported “a complete lack of evidence of
wrongdoing on the part of Chief Hensley or his staff.” At the request of
Ratliff, the FBI also investigated Hensley’s conduct. The FBI reached the same
conclusion as the Texas Rangers.
7
in making their allegations of corruption. Hensley publicly posted
the results of the investigations in the Department and made the
results available to several local media outlets, leading everyone
in the department to know the Plaintiffs were “in trouble.” Breaux
was also required to undergo a psychiatric exam following comments
he made to another officer while en route to the Department
polygraph test.7
Following the various interviews, Internal Affairs
investigations, and polygraphs, Breaux was placed on paid
administrative leave. In May 1994, Hensley called each Plaintiff
into his office separately, telling each that he could keep his job
if he accepted a short suspension and signed a letter, the terms of
which were to be mutually agreed to, retracting all of his
allegations. Both men refused the agreement offered by Hensley.
Hensley took no further action with respect to Breaux and Ambrogio.
Later in May, Ratliff was elected mayor of Garland. An
ally of those whom Hensley had been investigating, Ratliff caused
both Chief Hensley and City Manager Holifield to resign. In the
few months following Hensley’s resignation, the new Acting Police
Chief Barnett “non-sustained” the Internal Affairs charges against
Breaux and Ambrogio. Nevertheless, after returning from his paid
administrative leave in July 1994, Breaux was assigned to the
Telephone Response Unit (“TRU”). Breaux contends that Lay was a
7
Breaux told the officer that Breaux was surprised that someone had
not already shot an Internal Affairs investigator between the eyes.
8
friend of Barnett’s and that Barnett thought Breaux should be
punished with this assignment. (According to the City, Breaux was
assigned to the TRU, a position similar to the one he had at the
front desk, in order to accommodate his shift preferences.) Breaux
subsequently wrote to Barnett complaining about his assignment to
the TRU and requesting a transfer back to patrol duty. Chief
Barnett granted Breaux’s request, and Breaux returned to patrol
duty in November 1994.
Neither Breaux nor Ambrogio suffered a reduction in pay.
Both remain employed by the City of Garland.
II. PROCEDURAL HISTORY
In October 1994, Breaux and Ambrogio filed suit against
the City, Holifield, and Hensley alleging that the defendants were
liable under 42 U.S.C. § 1983 for violating the Plaintiffs’
constitutional rights to free speech and free association. Breaux
also alleged that the City violated the Texas Whistleblower Act,
Tex. Gov’t Code Ann. § 544.001, et seq., by retaliating against him
for reporting wrongdoing involving Holifield and Hensley. The case
was removed from state to federal court.
Responding to serial motions for summary judgment by the
City, the district court first held that the statute of limitations
barred all of the Whistleblower Act claims except for Breaux’s
claim that his assignment to the TRU in July 1994 was in
retaliation for reporting possible political investigations.
9
Later, the district court granted summary judgment on the
Plaintiffs’ § 1983 claim against the City on the ground that
Hensley and Holifield did not have “final policy-making authority”
for the City with respect to “police officer employment decisions.”
After a seven-day trial, the jury found Hensley and
Holifield individually liable under § 1983, ordering actual damages
against each defendant for each Plaintiff in amounts exceeding a
half million dollars. Each individual Defendant was also ordered
to pay $5,000,000 in punitive damages to each Plaintiff. The City
was found liable to Breaux under the Whistleblower Act for $527,500
in actual damages and $5,000,000 in punitive damages. The total
award to both Plaintiffs amounted to $27,707,012.
The court entered judgment on the verdict but then
responded to various post-judgment motions. The district court
granted the City’s Motion for Judgment as a Matter of Law on the
Whistleblower Act claim, holding that Breaux had failed to exhaust
his administrative remedies. The court also found that the jury’s
findings of lost earning capacity and part of the award to Breaux
for lost past income were not supported by the evidence. The court
accordingly reduced the actual damages, proportionally reduced the
punitive damages, and required a remittitur from the Plaintiffs.
The Plaintiffs accepted the remittitur. As a result, Breaux and
Ambrogio were awarded, jointly and severally from the Defendants,
$6,258.75 and $2,256 respectively for past lost income, and
severally from each defendant $150,000 for lost reputation, $50,000
10
for mental anguish, and $2,000,000 as punitive damages. The
Amended Judgment dismissed Plaintiffs’ claims against the City with
prejudice and awarded total damages in the amount of $4,406,258.75
to Breaux and $4,402,256 to Ambrogio, plus post-judgment interest,
reasonable attorneys’ fees, and expenses and costs.
Hensley and Holifield contend on appeal that (1) the
Plaintiffs’ speech is false or reckless as to its truth or falsity
and therefore not constitutionally protected (or at least they
reasonably could have believed it was unprotected), (2) neither
Plaintiff suffered an adverse employment action, and (3) the
damages are excessive. Breaux contends on cross-appeal that he did
properly exhaust his administrative remedies as required by the
Whistleblower Act.8
III. ANALYSIS
A. Chief Hensley
The jury was persuaded that Breaux and Ambrogio became
the objects of a vendetta by Chief Hensley and City Manager
Holifield, once they blew the whistle on politically-motivated
investigations of Garland City Council members by the City’s top
employees. No doubt the jury was powerfully influenced by the
corroborating testimony of Wilson and Ratliff, who (in the wake of
the officers’ allegations) had become Chief of Police and Mayor,
8
Other issues have been raised by the parties. We have considered
them and conclude they are either meritless or subsumed by the dispositive
issues.
11
respectively.
This finding is, however, not the end of the matter. In
order to establish a constitutional claim for retaliation against
the exercise of one’s First Amendment rights, four elements must be
shown:
First, the Plaintiffs must suffer an adverse
employment decision. Second, the Plaintiffs’
speech must involve a matter of public
concern. Third, the Plaintiffs’ interest in
commenting on matters of public concern must
outweigh the Defendants’ interest in promoting
efficiency. Fourth, the Plaintiffs’ speech
must have motivated the Defendants’ action.
Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir.
1999) (citations omitted).
A major dispute between the parties throughout this
litigation has persisted over whether Plaintiffs’ allegations of
corrupt political investigations by Hensley and Holifield were
false, and if so, whether false or reckless allegations merit First
Amendment protection. This complaint is answered on one level by
the precise wording of the jury charge. In arriving at a verdict
for the Plaintiffs, the jury was required by the court’s charge to
find the Plaintiffs’ allegations true.9
9
More problematic is that the court also submitted to the jury the
critical second and third elements of the retaliation claim. The second and
third elements of the test outlined above examine whether a public employee’s
speech deserves First Amendment protection by balancing the nature of the speech,
i.e. its relation to matters of public rather than purely personal concern,
against the need of government entities as employers to maintain a harmonious,
efficient workplace. Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684 (1983).
District courts in this circuit have been predisposed to submit claims in this
fashion, but, insofar as the second and third elements are questions of law, this
12
Hensley and Holifield nevertheless continue to label the
allegations bogus and to assert that false allegations of
corruption are constitutionally unprotected, but neither they nor
their opponents address what standard of review we must employ
concerning the jury verdict. In this circuit, several opinions
refused to determine the standard of review because of uncertainty
as to whether First Amendment rights raise a legal question or a
mixed question of law and fact. See Brady, 145 F.3d at 708 n.7
(citing cases). In one recent case, however, this court cited a de
novo standard for First Amendment claims and then reversed a jury
verdict favoring retaliation plaintiffs. Harrington, 118 F.3d at
365. As Harrington assumed arguendo that plaintiffs’ speech was
entitled to First Amendment protection, the offhand invocation of
a de novo standard of review made no difference on that issue.
Like its predecessors, this opinion will not have to
resolve the uncertainty over the standard of review, and the issue
may be deferred again for a future panel. As in Harrington, we
assume arguendo that the evidence supports the jury’s finding that
the Plaintiffs reported truthful allegations of public corruption
in the police department. Truthful allegations of such a nature
court has expressed its concern about the practice. See Brady v. Fort Bend
County, 145 F.3d 691, 708 n.7 (5th Cir. 1998).
13
implicate matters of public concern.10 The only question then
remaining is whether Officers Breaux and Ambrogio suffered adverse
employment actions after the March 1994 meeting with Holifield and
the subsequent press conference when they spoke out.11 Harrington,
118 F.3d at 365.12
Fifth Circuit caselaw, some of which post-dates the trial
in this case, is inconsistent with Breaux’s and Ambrogio’s
contention that they suffered actionable adverse employment
actions. “Adverse employment actions are discharges, demotions,
refusals to hire, refusals to promote, and reprimands.” Pierce v.
Texas Dep’t of Criminal Justice, Institutional Div., 37 F.3d 1146,
1149 (5th Cir. 1994). Transfers can constitute adverse employment
10
If the allegations of corruption are true, such allegations are
matters of public concern and outweigh the government’s interest in efficiency.
See Teague v. City of Flower Mound, 179 F.3d 377, 381 (5th Cir. 1999); Brawner
v. City of Richardson, 855 F.2d 187, 191-92 (5th Cir. 1988) (“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 police department.” (footnotes omitted)).
11
Defendants do not contest the fourth element of the retaliation claim
identified in Harris. They acknowledge that Breaux and Ambrogio were subjected
to various disciplinary actions because of their explosive allegations.
12
The jury found that Plaintiffs were retaliated against for exercising
their First Amendment rights of free speech and association. This court’s
analysis focuses on the Plaintiffs’ freedom of speech claims but applies equally
to the freedom of association claims: “When a plaintiff’s claims arise under both
freedom of speech and freedom of association, as in the case at bar, the freedom
of association claims are analyzed under the same Pickering balance test used to
determine the success of the freedom of speech claims.” Anderson v. Pasadena
Indep. Sch. Dist., 184 F.3d 439, 444 (5th Cir. 1999). In this circuit, Harris
sets out the requirements for First Amendment retaliation claims generally. The
only difference between the requirements for a retaliation claim predicated on
free speech and one predicated on free association is that the latter “is not
subject to the threshold public concern requirement.” Boddie v. City of
Columbus, Mississippi, 989 F.2d 745, 747 (5th Cir. 1993). As a result, the
Plaintiffs’ freedom of association claims fail for the same reason as their
freedom of speech claims, namely the absence of an adverse employment action.
14
actions if they are sufficiently punitive, see id. at 1150, or if
the new job is markedly less prestigious and less interesting than
the old one, see Click v. Copeland, 970 F.2d 106, 110 (5th Cir.
1992). This court has “declined to expand the list of actionable
actions, noting that some things are not actionable even though
they have the effect of chilling the exercise of free speech.”
Benningfield v. City of Houston, 157 F.3d 369, 376 (5th Cir.
1998)(citing Pierce, 37 F.3d at 1150). The reason for not
expanding the list of adverse employment actions is to ensure that
§ 1983 does not enmesh federal courts in “relatively trivial
matters.” Dorsett v. Board of Trustees, 940 F.2d 121, 123 (5th
Cir. 1991). For example, in the education context, this court has
held that “‘decisions concerning teaching assignments, pay
increases, administrative matters, and departmental procedures,’
while extremely important to the person who dedicated his or her
life to teaching, do not rise to the level of a constitutional
deprivation.” Harrington, 118 F.3d at 365 (quoting Dorsett, 940
F.2d at 123).
Given the narrow view of what constitutes an adverse
employment action, this court has held that the following are not
adverse employment actions: (1) mere accusations or criticism, see
Harrington, 118 F.3d at 366; (2) investigations, see Pierce, 37
F.3d at 1150; (3) psychological testing, see Benningfield, 157 F.3d
at 376; (4) false accusations, see Colson v. Grohman, 174 F.3d 498,
15
511 (5th Cir. 1999); and (5) polygraph examinations that do not
have adverse results for the plaintiff, see Pierce, 37 F.3d at
1150.
The foregoing legal framework makes clear why Breaux and
Ambrogio have not suffered any adverse employment actions. Hensley
ordered Internal Affairs investigations of Breaux and Ambrogio
after they made allegations of illegal political investigations,
but, as Pierce and Colson hold, investigating alleged violations of
departmental policies and making purportedly false accusations are
not adverse employment actions. See Pierce, 37 F.3d at 1150;
Colson, 174 F.3d at 511; see also Benningfield, 157 F.3d at 376.
Hensley’s requiring Breaux to undergo a psychological exam after
Breaux’s intemperate remark to a fellow employee also is not an
adverse employment action. See Benningfield, 157 F.3d at 376.
Although Breaux was placed on administrative leave from late April
to July 1994, Breaux was paid while on leave and returned to his
pre-leave position.13 Thus, Breaux suffered no adverse action with
respect to the leave. See Benningfield, 157 F.3d at 378 (plaintiff
did not suffer adverse employment action when promotion was delayed
two years in response to her exercising her free speech rights
because she eventually received the promotion with retroactive pay
and seniority). Similarly, any criticism, such as Hensley’s oral
13
Breaux did not allege that his initial transfer out of the
Intelligence Unit, made at his request, or his assignment to desk duty in
November 1993 were retaliatory. It was not until March, 1994 that he first
exercised his free speech rights by publicly alleging corruption.
16
threats or abusive remarks, does not rise to the level of an
adverse employment action. See Harrington, 118 F.3d at 366.
More troubling are Chief Hensley’s public posting of the
findings of the Internal Affairs investigation and his attempt to
get Breaux and Ambrogio to sign resignation letters. Although
posting the results of the Internal Affairs investigation in the
station may have comported with Departmental regulations, Hensley’s
disseminating that information to the media went “several steps
beyond a criticism or accusation and even beyond a mere
investigation” and was “punitive in a way that mere criticisms,
accusations, and investigations are not.” Colson, 174 F.3d at 512
n.7. The reprimands went, at least temporarily, on Breaux’s and
Ambrogio’s permanent records.
However, this court recognizes that a rescinded reprimand
does not rise to the level of an adverse employment action: “[if]
the reprimand was rescinded through internal [Houston Police
Department] procedures ... [it] does not constitute an adverse
employment action.” Benningfield, 157 F.3d at 377. After becoming
Chief of Police, Barnett “non-sustained” the charges against Breaux
and Ambrogio. The Plaintiffs contend that “an after-the-fact,
unpublicized correction could not and did not undo the injury that
Hensley’s earlier reprimand caused.” But the record does not
indicate what employment injury the Plaintiffs have suffered.
Breaux and Ambrogio are in a position similar to that of the law
17
professors in Harrington. See Harrington, 118 F.3d at 366.
Neither Plaintiff has been discharged from the Garland Police
Department. Neither Plaintiff has been demoted, denied a
promotion, suffered a reduction in pay, or lost seniority as a
result of his speech. In fact, the only parties to the present
suit who have lost their jobs are Hensley and Holifield. Thus,
Chief Barnett’s non-sustaining the charges through internal
procedures precluded an adverse employment result.14
The Plaintiffs also contend that Hensley’s attempts to
get them to recant their allegations constitute threats of
discharge which, under Harrington and Click, are adverse employment
actions.15 However, Harrington and Click do not establish that a
threat of discharge is itself sufficient to establish an adverse
employment action. In summarizing the evidence, the Harrington
court said only that “the evidence is clear that no Plaintiff has
14
The Plaintiffs’ concern with the publication of the Internal Affairs
investigations to the media suggests that they want to import defamation into the
adverse employment prong of their retaliation claim. But the Plaintiffs have not
made a defamation claim, nor is defamation part of the present § 1983 action.
Furthermore, this court has recognized that “[w]hen an employee retains his
position even after being defamed by a public official, the only claim of stigma
he has derives from the injury to his reputation, an interest that [Paul v.
Davis, 424 U.S. 693, 96 S.Ct. 1155 (1976),] reveals does not rise to the level
of” a Fourteenth Amendment violation. Moore v. Otero, 557 F.2d 435, 437-38 (5th
Cir. 1977). Stigma by itself, without an impact on one’s employment, does not
constitute an adverse employment action. See Blackburn v. City of Marshall, 42
F.3d 925 (5th Cir. 1995) (“We have applied the holding of Paul by requiring a
section 1983 plaintiff to show stigma plus an infringement of some other
interest.” (citation omitted)).
15
The other verbal criticisms that the Plaintiffs allege took place at
the chain of command board hearings are not adverse employment actions. See
Harrington, 118 F.3d at 366 (“mere criticisms do not give rise to a
constitutional deprivation for purposes of the First Amendment.”).
18
been discharged or threatened with discharge....” 118 F.3d at 366.
Not only was the court not defining the requirements for making out
a successful retaliation claim under § 1983, but the court was
explaining that the plaintiffs’ retaliation claims must fail
because the plaintiffs suffered no adverse consequences for
exercising their speech rights.
In Click, the court principally discussed whether
transfers that were effectively demotions, as opposed to threats of
discharge, were actionable. As the Click court stated, the
government “‘may not deny a benefit to a person on a basis that
infringes his constitutionally protected interests -- especially,
his interest in freedom of speech.’” 970 F.2d at 109 (quoting
Perry v. Sinderman, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697 (1972))
(emphasis added). Some benefit must be denied or some negative
consequence must impinge on the Plaintiff’s employment before a
threat of discharge is actionable.16
Click also stated that “even the threat of discharge can
be a potent means of chilling the exercise of constitutional
rights.” Click, 970 F.2d at 109. For this purpose, Click referred
16
See also Bickel v. Burkhart, 632 F.2d 1251, 1255 n.6 (5th Cir. 1980)
(“impermissible retaliation [need] not result in the termination of his
employment” in order to be actionable under § 1983, but the employer’s actions
must alter “important conditions of employment”) (emphasis added). The record
does not demonstrate that the alleged threat of discharge altered any important
conditions of the Plaintiffs’ employment. Hensley took no further action with
respect to either Plaintiff after the Plaintiffs refused to sign the letters of
retraction. Breaux was already suspended with pay, and the Internal Affairs
investigations had already been completed. Compare Fyfe v. Curlee, 902 F.2d 401,
404-05 (5th Cir.) (transfer without loss in pay to menial, undemanding job is
actionable under § 1983), cert. denied, 111 S.Ct. 346 (1990).
19
to the Supreme Court’s analysis in Pickering v. Bd. of Educ., 391
U.S. 563, 574, 88 S.Ct. 1731, 1737 (1968). Pickering does not,
however, state that a threat of discharge alone will suffice for a
First Amendment retaliation claim. The facts before the Court
involved not a threat, but the actual dismissal of a teacher for
writing a letter to a newspaper critical of the local school board.
In the statement quoted above by Click, the Supreme Court was
comparing dismissals of public employees with criminal sanctions
and damage awards for defamation, two other devices that had been
used to penalize the exercise of free speech rights -- before the
Supreme Court outlawed them.17 Had the Court not spoken in
Pickering, and prevented retaliatory dismissals for exercise of
First Amendment rights, threats of dismissals could chill
constitutional rights because they could be backed up. As the law
stands now, retaliatory threats are just hot air unless the public
employer is willing to endure a lawsuit over a termination.
Pickering’s (and by extension, Click’s) reference to threats of
termination illustrated the problem if threats could be realized;
the Court did not hold or imply that threats of termination alone,
in a post-Pickering world in which retaliatory discharge is
outlawed, would generate liability.
Breaux contends that his transfer to the Telephone
17
The Court ultimately declined fully to equate employee dismissals
with constitutional rights in defamation cases, precisely because in the former,
a balance must be maintained between the public interest in an orderly workplace
and the discussion of issues of public concern.
20
Response Unit (“TRU”) was similar to the transfer that was found in
Click to be an adverse employment action. Although initially
compelling, this argument is without merit on a closer look at the
record. First, Breaux was assigned to the TRU by Barnett only
after Hensley had been fired. The record does not show that
Hensley caused Breaux to be transferred. Second, since Breaux was
already on front desk duty, the transfer did not constitute a
punitive action by the department. Although Breaux felt that the
TRU was a step down, “‘a plaintiff’s subjective perception that a
demotion has occurred is not enough’ to constitute an adverse
employment decision.” Harris, 168 F.3d at 221 (quoting Forsyth v.
City of Dallas, 91 F.3d 769, 774 (5th Cir. 1996)). At trial, Chief
Wilson, the Plaintiffs’ first witness, testified that the TRU
assignment is not viewed as punishment in the Garland Police
Department and that the TRU carries out an important function
within the Department. Thus, since the transfer is not traceable
to Hensley and is a position similar to front desk duty, the
transfer does not constitute an adverse employment action.
Finally, the Plaintiffs argue that, even if the
individual actions taken by Hensley do not constitute an adverse
employment action, the aggregate of these actions constitutes a
“vengeful vendetta” actionable under § 1983. For this idea, the
Plaintiffs cite only Thompson v. City of Starkville, 901 F.2d 456(5th Cir. 1990), which observed: “Although it may be difficult to
delimit exactly what conduct, in the abstract, violates a public
21
employee’s first amendment rights, a vengeful vendetta seeking an
employee’s job because of his speech on a matter of public concern
surely falls within the ambit.” Id. at 470. But Thompson is not
as broad as the Plaintiffs suggest. The constituent acts and the
final result of the vendetta were worse than most of the alleged
retaliatory actions by Hensley: The defendants accused the
plaintiff police officer of committing a burglary, alleged that he
threatened another officer, caused the plaintiff to be disciplined
more severely than other officers for the same offense, and
ultimately were instrumental in having him fired. See id. at 469.
Thompson is thus consistent with this court’s holding in
Colson. In Colson, this court evaluated when a campaign of
retaliatory harassment amounted to an adverse employment action.
To be actionable, “the campaign of retaliatory harassment [must]
rise to such a level as to constitute a constructive adverse
employment action.” Id. at 514. The court explained “constructive
adverse employment action” by reference to two cases. The court
held that in Sharp the plaintiff was “constructively demoted ...
because the defendants created an ‘intolerable situation’ causing
her to transfer to a less desirable position.” Id. (quoting Sharp
v. City of Houston, 164 F.3d 923, 934 (5th Cir. 1999)). The Colson
Court also relied upon Benningfield. 174 F.3d at 513. Although
one plaintiff in Benningfield resigned as a result of a campaign of
harassment, the court held that a reasonable person in her position
22
would not have felt compelled to resign. Since Breaux and Ambrogio
still have their jobs with the Department and have neither been
demoted nor transferred to less desirable positions, they have
failed to show that the Defendants’ actions amounted to a
constructive or actual adverse employment action.
B. City Manager Holifield
Despite Holifield’s limited interaction with the
Plaintiffs, the jury found Holifield liable under § 1983 for over
$4 million in damages. On appeal, Holifield argues that there was
insufficient evidence to show that, as required by the language of
§ 1983, he “cause[d]” the Plaintiffs to be subjected to First
Amendment violations. As noted, whether the Plaintiffs alleged any
adverse employment actions by Holifield is a question of law
reviewed de novo. See Harrington, 118 F.3d at 365.
In “assessing an individual supervisor’s liability under
§ 1983,” this circuit applies the City of Canton standard of
municipal liability. Doe v. Taylor Indep. Sch. Dist., 15 F.3d 443,
453 (5th Cir. 1994)(en banc). Under this standard, a supervisor is
liable under § 1983 only if (1) his conduct directly causes a
constitutional violation or (2) the plaintiffs can show that the
supervisor was “deliberately indifferent” to a violation of a
constitutional right. Id. at 454 n.8. (citing City of Canton, 489
U.S. 378, 388 n.8, 109 S.Ct. 1197, 1204 n.8 (1989)).
Holifield did not cause the Plaintiffs to suffer a
23
violation of their First Amendment rights. His direct contact with
the Plaintiffs was limited. During the March 1994 meeting with the
GPOA Board members, Holifield threatened to “destroy” the GPOA if
the group acted politically within the department. With the assent
of Breaux and Ambrogio, Holifield referred Breaux’s allegations of
politically-inspired investigations to Hensley. Holifield also
notified Hensley that film was missing from the hidden camera in
his office and suggested that one of the GPOA Board members, who
had recently met with him there and could recognize the camera,
might have stolen the film.
Internal Affairs investigations were commenced with
respect to Breaux’s allegations of corruption and the missing film.
But, since neither of these investigations constitutes an adverse
employment action, see Benningfield, 157 F.3d at 376, Holifield’s
role in initiating the investigations is not a sufficient “cause”
to establish liability under § 1983. See Heil v. Santoro, 147 F.3d
103, 110 (2d Cir. 1998) (“There being no First Amendment violation
in investigating, the reason for the investigation created no
material issue to be tried.”). Similarly, Holifield’s criticism of
and threat to destroy the GPOA are not adverse employment actions.
See Harrington, 118 F.3d at 366.
The result is the same if Holifield’s conduct is viewed
from the perspective of his supervisory role. Liability is imposed
only if he was deliberately indifferent to subordinates’ violations
24
of the Plaintiffs’ constitutional rights. Laying aside the
question whether the city manager was a supervisor of anyone in the
Police Department, the fact that Plaintiffs’ First Amendment rights
were not actually infringed exonerates Holifield from supervisory
liability.
C. The City of Garland
1. Breaux’s appeal
Breaux appeals the district court’s summary judgment on
his § 1983 claim against the City and post-verdict judgment as a
matter of law on his Whistleblower Act claim. The district court
granted summary judgment to the City on all § 1983 claims, holding
that no injury was caused by a municipal policymaker.
Because of a short limitation period under the
Whistleblower Act, Breaux’s state law claim against the City is
based solely upon his transfer to the TRU for several months in
1994. The district court granted judgment as a matter of law on the
Whistleblower Act claim because Breaux failed to exhaust his
administrative remedies.18 Breaux contends that exhaustion was not
required because the police department’s Internal Affairs process
did not allow for complaints against the Chief of Police, but, in
the alternative, he did file such a complaint. This court reviews
the district court’s judgment as a matter of law de novo. Pierce,
18
See Tex. Gov’t Code Ann. § 554.006(a) (West 1994) (“An employee of
a local government must exhaust that government’s grievance or appeal procedures
relating to suspension or termination of employment or unlawful discrimination
before suing under this chapter.”) (amended 1995).
25
37 F.3d at 1149.
The exhaustion requirement of the Texas Whistleblower Act
is jurisdictional and, therefore, mandatory and exclusive. See
Essenburg v. Dallas County, 988 S.W.2d 188, 189 (Tex. 1998) (“It is
true that a plaintiff’s failure to exhaust administrative remedies
may deprive courts of subject matter jurisdiction in the dispute
... [since] the exhaustion requirement seeks to assure that the
appropriate body adjudicates the dispute -- the hallmark of a
jurisdictional dispute.”). Moreover, the Whistleblower Act
requires “the employee to utilize all procedures in place for
resolving disputes at the governmental entity.” Gregg County v.
Farrar, 933 S.W.2d 769, 775 (Tex. App. -- Austin 1996, writ
denied). Contrary to Breaux’s claim on appeal, the Internal
Affairs process of the Garland Police Department is broad enough to
encompass claims against the Chief of Police. Under General Order
76-29, the policy of Internal Affairs is to investigate “all
complaints ... of misconduct of employees who are sworn police
officers.” General Order 76-29. Misconduct is defined to include
a violation of the general orders of the Department. In response
to the City’s motion for judgment as a matter of law, Breaux
characterized his complaint as being “that Chief Barnett and his
subordinates were retaliating against him by transferring him to
the TRU for ‘blowing the whistle’ on Barnett’s allies, Hensley and
26
Jody Lay.”19 By alleging that the Chief of Police violated the
Whistleblower Act, Breaux invoked both General Order 76-5, which
subjects an officer to disciplinary action for violating state law,
and General Order 76-29, which proscribes misconduct. The
administrative remedy was available to Breaux.
Breaux argues, however, that the Internal Affairs process
could not resolve complaints against the Chief of Police; filing a
complaint with Internal Affairs would be futile since the Chief of
Police determines whether an investigation should be initiated and
ultimately reviews the results. In support of Breaux’s claim,
Chief Wilson testified that, “I would think if an officer had an
accusation to make against the chief of police, it might be
appropriate to go outside the Internal Affairs unit to do that ...
[T]here’s no guide book that says if you’re going to accuse the
chief of police of something follow steps one, two and three.”
The district court rejected Breaux’s argument. Texas
courts have recognized a futility exception to exhaustion
requirements in only a limited number of circumstances. See, e.g.,
Town of Sunnyvale v. Mayhew, 905 S.W.2d 234, 246 (Tex. App. 1994),
rev’d on other grounds, 964 S.W.2d 922 (Tex. 1998); Methodist
19
In order to show that his complaint falls outside the scope of the
Internal Affairs process, Breaux also characterizes his complaint as an
“employment-related dispute.” But if his complaint involved only an employment
dispute, Breaux’s complaint would not fall within the Whistleblower Act. Thus,
in order to maintain an action under the Act, Breaux must allege a violation of
state law by Chief Barnett -- a claim that does fall within the purview of
Internal Affairs.
27
Hosps. of Dallas v. Texas Workers’ Compensation Comm’n, 874 S.W.2d
144, 149-50 (Tex. App. 1994, no writ). Since no Texas court has
applied a futility exception to statutory, jurisdictional
exhaustion requirements, the district court refused to “enlarge
existing state law by adopting a futility exception to the
Whistleblower Act’s exhaustion requirement.” This court also
refuses to create a futility exception under such circumstances.
The purposes of the exhaustion requirement are to give
the employer notice of a grievance and a chance to resolve it. As
the Texas Supreme Court recently noted, the exhaustion requirement
demonstrates the legislature’s “will to have the agency resolve
disputed issues of fact and policy.” Essenburg, 988 S.W.2d at 189.
The fact that the Act allows an employee to file a civil suit if
the employer has not resolved his complaint in 30 days shows that
“the legislature intended that the governmental entity should be
afforded the opportunity to correct its own errors by resolving
disputes before being subjected to the expense and effort of
litigation.” Farrar, 933 S.W.2d at 775.
Even if the Department’s procedures for filing a
grievance against the Chief of Police were unclear, the exhaustion
requirement still serves a notice-giving function. Texas courts
have recognized a futility exception only in cases where it was
impossible for the governmental agency to address an issue, e.g.,
28
the constitutionality of a statute.20 But here, requiring notice
even if the available grievance procedures are not clearly
delineated would have enabled the City either to develop a record
for judicial review on fact questions (if not to resolve the
dispute about the transfer) or possibly to mitigate Breaux’s
damages by transferring him out of the TRU sooner. To repeal
exhaustion when grievance procedures are ambiguous would eliminate
the notice-giving effect of the Act’s exhaustion requirement, which
has been held to supersede general presentment requirements.21 Id.
at 773. Furthermore, requiring an employee to exhaust his
remedies, which could delay a civil suit by only 30 days, is hardly
onerous or unfair.
In any event, the premise of Breaux’s argument for the
futility of exhaustion appears incorrect. General Order 76-29
20
The cases Breaux cites as examples of exceptions to the exhaustion
requirement involved situations where there clearly was no way for the agency
involved to provide relief. See Texas State Bd. of Pharmacy v. Walgreen Texas
Co., 520 S.W.2d 845 (Tex. 1975) (agency powerless to determine constitutionality
of statutes); City of Austin v. Phipps, 344 S.W.2d 673 (Tex. 1961) (Civil Service
Commission given no jurisdiction over denial of injury leave of absence);
Birdville Indep. Sch. Dist. v. First Baptist Church, 788 S.W.2d 26 (Tex. App. --
Fort Worth 1988, writ denied) (agency powerless to decide constitutionality of
statute). As discussed above, this is not the case in the present action.
21
Even if the grievance procedure is ambiguous with respect to filing
complaints against the Chief of Police, Texas case law suggests that an employee
is not exempt from the need to notify his employer that the employee is about to
file a Whistleblower claim in court. Under the Act, when “it is unclear whether
the employer has a post-termination grievance procedure, or it is unclear what
the procedure is and when ... the terminated employee [timely] notifies the
employer that he is invoking that employee’s grievance procedure, informing the
employer that it has 30 days in which to conclude the grievance procedure,” the
employee would meet the statute of limitations provision in the Act. Beiser v.
Tomball Hosp. Auth., 902 S.W.2d 721, 724 (Tex. App. -- Houston [1st Dist.] 1995,
writ denied). Since the limitations period is tolled by a proper invocation of
grievance procedures, this holding speaks directly to exhaustion.
29
permits Internal Affairs to investigate all complaints against any
sworn police officer, thus including the Chief of Police. Under
General Order 76-29, an officer can complain of misconduct to any
supervisor, and “the complainant should be referred to Internal
Affairs directly if possible.” General Order 78-61 provides for a
line of succession in command if the Chief of Police is determined
to be incapacitated because, e.g., the Chief is recused from a
matter due to a conflict of interest. As a result, the Internal
Affairs process is equipped to handle a complaint against the Chief
of Police or, at least, to provide the Department and the City with
notice of an employee’s potential claim. Because the Internal
Affairs regulations do not preclude a complaint against the Chief
and indeed contemplate the necessity of circumventing the Chief,
and because the exhaustion requirement advances Texas’ concern with
giving employers notice, a futility exception to the Whistleblower
Act exhaustion requirement is inappropriate.
Finally, Breaux contends that his letter to Chief
Barnett, entitled “Request Consideration for Transfer,” effectively
initiated the Internal Affairs process for exhaustion purposes.
General Order 76-29 provides that an officer’s complaint may be
“initiated by submitting a written memorandum to the Director of
Police Services requesting an investigation and detailing the
conduct being complained about.” Breaux’s letter stated that
(1) he “was ordered into the TRU, against [his] will,” (2) he “did
30
not request assignment to this position,” and (3) “the transfer was
directly related to dictates of a previous police administrator.”
Breaux neither provided any details about retaliatory conduct nor
requested an investigation into the transfer. At most, he
requested that a written explanation be given if his request for a
transfer were denied: “I am not aware of any reasons that would
prohibit me from this requested transfer to an enforcement position
in patrol; but if any exist, I would appreciate being advised in
writing so that the issue could be confronted and resolved.”22 His
letter was insufficient to state a complaint under General Order
76-29 or to exhaust under the Whistleblower Act.23
2. Ambrogio’s appeal
Ambrogio appeals only the taxing of some of the City’s
costs against him. In its May 8, 1998, Amended Judgment, the
district court dismissed all claims against the City and taxed 40%
of the City’s costs of court against Ambrogio. This court reviews
a district court’s award of costs for an abuse of discretion.
Fogleman v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991).
The taxation of costs is allowed “as of course to the
22
In his letter to Chief Barnett, Breaux asked permission “to transfer
back to the uniform patrol division during the next seniority selection process”
in the fall of 1994. Barnett granted Breaux’s request, and Breaux returned to
patrol duty in November 1994.
23
The case Breaux cites for broadly construing his alleged complaint
is distinguishable. In Farrar, the court found that a letter complaining of a
demotion “without just cause” was sufficient to provide notice that the complaint
was about “retaliatory employment practices.” Farrar, 933 S.W.2d at 774. But
Farrar, unlike Breaux, had written a letter specifically to a grievance
committee, initiating a committee hearing about Farrar’s demotion.
31
prevailing party unless the court otherwise directs.” Fed. R. Civ.
P. 54(d)(1). In this case, the City clearly prevailed against
Ambrogio. None of Ambrogio’s claims against the City went to the
jury, and he does not appeal the district court’s pretrial
dismissal of those claims. On appeal, Ambrogio does not explain
how the district court abused its discretion in apportioning costs
against him.
IV. CONCLUSION
The police officers failed to make out a First Amendment
retaliation claim. Even though they persuaded the jury, and we
have assumed, that they truthfully spoke out to reveal political
investigations of public officials, the exercise of First Amendment
rights is not enough. The retaliation they complained of --
investigations, criticisms, public (but withdrawn) reprimands,
psychological and polygraph testing, suspension with pay, transfer
to the TRU -- do not, either individually or collectively,
constitute adverse employment actions. The actions taken by
Hensley and Holifield did not give rise to § 1983 liability. For
reasons previously explained, we have rejected the other issues
raised on appeal.
This court reverses the judgment for the Plaintiffs on
their § 1983 claims against the individual Defendants and renders
a take-nothing judgment against the Plaintiffs on these claims. We
affirm the district court’s dismissal of the City as a Defendant
32
and the taxing of costs against Ambrogio.
AFFIRMED IN PART; REVERSED AND RENDERED IN PART.
33