Richard Tucker v. Upshur County Juvenile Prob, et

Case: 13-41157 Document: 00512771175 Page: 1 Date Filed: 09/16/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-41157
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
September 16, 2014
RICHARD TUCKER,
Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
LAUREN PARISH; JAMES BOWLING; DEAN FOWLER; WILLIAM
MCGEE,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 6:11-CV-602
Before JOLLY, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM: *
Richard Tucker appeals the district court’s dismissal of his First
Amendment claims against various individuals associated with the Upshur
County Juvenile Probation Department. For the following reasons, we affirm.
Pursuant to 5TH CIR. R. 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 CIR.
R. 47.5.4.
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No. 13-41157
I.
Tucker sued four officials associated with the Upshur County Juvenile
Probation office in their individual capacities under 42 U.S.C. § 1983 for
violations of his rights under the First Amendment. The named defendants
are (1) Lauren Parish, a judge of the 115th Judicial District Court of Upshur
County, (2) James Bowling, formerly an interim Upshur County judge during
the relevant period, (3) Dean Fowler, an Upshur County judge, and (4) William
McGee, the Chief Juvenile Probation Officer (collectively “appellees”).
According to his amended complaint, Tucker began working as a
probation officer in June 2007, and was the senior juvenile probation officer
when he was terminated on August 31, 2011. He alleges that in March 2010
he reported to the Juvenile Probation Office Board that ex-Juvenile Probation
Office Chief Milton Wylie and two other probation officers were forging
government documents. In retaliation, he was stripped of his collateral duties
and received a disciplinary notice for creating a hostile work environment.
Tucker also alleges that he was moved into a smaller and less accessible office,
and that these actions were taken with the approval and under the direction
of Parish and Fowler, who served as the office’s board members.
Tucker’s other allegations of retaliation include being “skipped over” for
a raise that was given to two other probation officers, having his access to the
office’s Policy and Procedure Manual and attendance at Commissioner’s Court
meetings restricted, being assigned fewer cases, and being ordered not to speak
to the District Attorney’s office. He claims that he brought the retaliation to
the attention of Bowling, who stated that McGee was trying to marginalize him
but otherwise took no action to alleviate the situation. He also attempted to
discuss the situation with Parish, but was told that she would not speak with
him. Tucker was terminated on August 31, 2011, and claims that the
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appellees’ stated reason for the termination—budget constraints—is not the
true reason for his firing. Rather, he claims that the appellees terminated him
in retaliation for his reporting the forgery.
On September 23, 2013, the district court granted appellees’ motions to
dismiss Tucker’s claims under Rule 12(b)(6). It held that the First Amendment
did not protect Tucker’s reporting of the forgery because it was speech made in
the course of performing his job. It further held that he failed to adequately
plead a colorable claim for the violation of his right of freedom of association.
Tucker appeals.
II.
This court reviews de novo a district court’s dismissal under Federal
Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief
can be granted, “accepting all well-pleaded facts as true and viewing those facts
in the light most favorable to the plaintiffs.” Doe ex rel. Magee v. Covington
Cnty. Sch. Dist. ex rel. Keys, 675 F.3d 849, 854 (5th Cir. 2012) (internal
quotation marks omitted). “[B]ut conclusory allegations or legal conclusions
masquerading as factual conclusions will not suffice to prevent a motion to
dismiss.” Beavers v. Metro. Life Ins. Co., 566 F.3d 436, 439 (5th Cir. 2009)
(internal quotation marks omitted).
III.
Tucker argues that the district court erred in dismissing his freedom of
speech claims because “a public employee who engages in whistleblowing does
not forfeit his protection against retaliation for his use of free speech simply
because he makes such speech privately rather than publicly.” But he fails to
address the district court’s holding that the First Amendment does not protect
the type of speech for which Tucker claims he suffered retaliation. We hold
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that the district court correctly determined that Tucker’s reporting of the
alleged forging of government documents was not protected speech.
A public employee asserting a retaliation claim under the First
Amendment “must establish the following: (1) she suffered an adverse
employment action; (2) her speech involved a matter of public concern; (3) her
interest in commenting on matters of public concern outweighs the employer's
interest in promoting efficiency; and (4) her speech motivated the employer's
adverse action.” Modica v. Taylor, 465 F.3d 174, 179–80 (5th Cir. 2006). The
district court held that although Tucker adequately pleaded an adverse
employment action, his speech was not protected under the First Amendment.
Because Tucker’s failure to properly allege protected speech was dispositive,
the court did not reach the remaining two elements.
The second element—whether or not the speech involved a matter of
public concern—“is a question of law that must be determined by the court.”
Id. at 180 (internal quotation marks omitted). In doing so, “our first task is to
determine whether [the] speech was part of [the public employee’s] official
duties, that is[,] whether she spoke as a citizen or as part of her public job.”
Davis v. McKinney, 518 F.3d 304, 312 (5th Cir. 2008); see also Garcetti v.
Ceballos, 547 U.S. 410, 419 (2006) (“The First Amendment limits the ability of
a public employer to leverage the employment relationship to restrict,
incidentally or intentionally, the liberties employees enjoy in their capacities
as private citizens,” and protects speech “[s]o long as employees are speaking
as citizens about matters of public concern.”). This court has held that
“[a]ctivities undertaken in the course of performing one’s job are activities
pursuant to official duties and not entitled to First Amendment protection,”
and that “when a public employee raises complaints or concerns up the chain
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of command at his workplace about his job duties, that speech is undertaken
in the course of performing his job.” Davis, 518 F.3d at 313.
Tucker reported the alleged forging of government documents to Wylie,
Parish, and Fowler, and never to anyone outside his chain of command. And
even assuming his duties as a probation officer did not include reporting
misconduct that occurred in his presence, Tucker’s speech consisted of
reporting information he gained because of his employment as a probation
officer. See Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 694 (5th Cir.
2007) (“Simply because Williams wrote memoranda, which were not demanded
of him, does not mean he was not acting within the course of performing his
job.”). Tucker’s amended complaint does not allege that the forged documents
related to anything other than the subject matter of his employment, and fails
to provide any other fact to establish that he was speaking as a citizen and not
as a probation officer when he reported the forgeries.
We hold that the district court did not err in dismissing Tucker’s freedom
of speech claim.
IV.
Tucker also argues that the district court erred in dismissing his freedom
of association claim. To prevail on a retaliation claim premised on a violation
of the First Amendment’s right to association, the plaintiff must “show that (1)
he suffered an adverse employment action, (2) his interest in ‘associating’
outweighed the [employer’s] interest in efficiency, and (3) his protected activity
was a substantial or motivating factor in the adverse employment action.” Hitt
v. Connell, 301 F.3d 240, 246 (5th Cir. 2002). We hold that the district court
correctly dismissed this claim because Tucker failed to allege a violation of his
First Amendment right of association.
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The district court order disposed of the freedom of association claim in
one paragraph, stating:
Tucker alleges that Defendants violated his rights to freedom of
association. But he did not plead any facts about freedom of
association. In fact, besides the general averment that he was
retaliated against for “pursuing his right to freedom of
association”, the word “association” does not appear anywhere else
in the Amended Complaint. Therefore, to the extent that any
cause of action lies separately in the violation of the right of
freedom of association, the motion to dismiss should be granted.
Tucker v. Upshur Cnty. Juvenile Prob., No. 6:11-cv-602 (E.D. Tex. Sept. 23,
2013). On appeal, Tucker’s argument is that he “was subjected to a clear
prohibition against speaking to members of the District Attorney’s office, even
on personal matters.” But he has never argued—before this court or the
district court—that any association or attempted association with the District
Attorney’s office led to his termination. To the extent Tucker claims a violation
of his right of freedom of association that is distinct from his free speech claim,
we hold that the district court was correct to dismiss it for inadequate pleading.
V.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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