Keith Hardesty v. Waterworks District 4 of Ward

Case: 14-31114 Document: 00513115305 Page: 1 Date Filed: 07/14/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-31114 FILED
July 14, 2015
Lyle W. Cayce
KEITH HARDESTY, Clerk
Plaintiff - Appellee
v.
KENNY COCHRAN; OLLIE L. “JOHNNY” JOHNSON, III; WATERWORKS
DISTRICT #4 OF WARD FOUR; OCCIE NORTON,
Defendants - Appellants
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:13-CV-293
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellee Keith Hardesty (“Hardesty”) brought a First
Amendment retaliation claim against Defendants-Appellants pursuant to 42
U.S.C. § 1983. 1 The individual defendants moved for summary judgment and
asserted the defense of qualified immunity. The district court denied the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
1 Hardesty also raised other claims, which the district court dismissed. Those claims
are not relevant to this interlocutory appeal.
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summary judgment motion. The individual defendants now appeal that order.
We affirm.
I.
The relevant facts, viewed in the light most favorable to Hardesty, are
as follows:
Hardesty worked as the plant manager for Defendant Waterworks
District No. 4 of Ward Four (the “District”). The District is a political
subdivision of the State of Louisiana that provides water service to an
unincorporated area of Calcasieu Parish outside of the City of Westlake. A
board of five commissioners (the “Board”) governs the District. Three of the
Board’s members, Occie Norton, Kenny Cochran, and Ollie L. “Johnny”
Johnson III, are named defendants in this suit (the “Board Defendants”). At
the time of the events relevant to this case, the Board also had another
member, Richard Hebert (“Hebert”), who is not a defendant in this suit, as well
as one vacancy.
Hardesty took a vacation in February 2011. When he returned, he heard
from the District’s consulting engineer that the Board was considering
allowing the adjacent city of Westlake to annex the District. By the time
Hardesty learned of the Board’s proposal, some, but not all, of the District’s
customers were already aware of the proposal.
Hardesty disfavored the annexation proposal because he believed that
“the system, if owned by the City of Westlake, would not efficiently furnish”
water services to its customers. Moreover, he believed that the annexation
would violate various laws. Thus, Hardesty felt duty-bound to inform the
community about the Board’s plans. Accordingly, Hardesty told several of the
District’s customers about the annexation proposal. Hardesty also advised
customers to attend Board meetings and object to the annexation plan.
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As a result, several dozen customers began regularly attending Board
meetings and voicing their objections to the annexation proposal. Ultimately,
the city of Westlake never annexed the District.
The Board Defendants told Hardesty at its April 12, 2011 meeting that
they were displeased by his decision to inform the District’s customers about
the annexation plan. Accordingly, the Board voted in favor of a motion to
terminate Hardesty if he engaged in “any other defiant acts.” By “defiant acts,”
the Board was referring solely to Hardesty’s communications with the
District’s customers.
On April 18, 2011, the Board voted to give every employee of the District
a raise except Hardesty. Hebert moved at a subsequent Board meeting to
reinstate Hardesty’s raise and make it retroactive, but the Board Defendants
defeated that motion.
At the January 16, 2012 Board meeting, Defendant Johnson moved to
terminate Hardesty’s employment “due to insubordination and defiance.” The
Board Defendants voted in favor of the motion, with only Hebert voting
against.
Hardesty sued Defendants-Appellants in state court, alleging that they
retaliated against him for exercising his free speech rights under the First
Amendment. Specifically, Hardesty alleges that the Board Defendants
terminated him because he told customers about the annexation plan.
Defendants-Appellants removed the case on federal question grounds.
The Board Defendants then moved for summary judgment on Hardesty’s First
Amendment retaliation claim, asserting qualified immunity. The district court
denied the motion. The Board Defendants now appeal the district court’s
interlocutory order denying their qualified immunity defense.
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II.
“Although a denial of summary judgment is typically unappealable,
defendants have a limited ability to appeal a denial of qualified immunity
under the collateral order doctrine.” 2 This Court has jurisdiction over such an
interlocutory appeal only to the extent that the district court’s order denying
summary judgment turns on an issue of law. 3
“Our court does not conduct a typical de novo review for an interlocutory
appeal of a denial of summary judgment on qualified immunity grounds.” 4
“Where the district court has found that a material issue of fact exists, we have
jurisdiction to review the materiality, but not the genuineness, of the factual
dispute.” 5 “This court must ‘accept the plaintiff’s version of the facts as true’
and may review de novo only the purely legal question of whether ‘the district
court erred in concluding as a matter of law that officials are not entitled to
qualified immunity on that given set of facts.’” 6 Thus, to the extent Defendants
challenge “the district court’s assessment of the facts established by or
inferable from the evidence,” the Court must dismiss the appeal. 7
Whether a public employee’s speech is entitled to First Amendment
protection is a legal question properly decided at the summary judgment
phase. 8
2 Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 467 (5th Cir. 2014) (emphasis
in original).
3 Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008) (citing Kinney v. Weaver, 367 F.3d
337, 346 (5th Cir. 2004) (en banc)).
4 Cutler, 767 F.3d at 469 (citing Kinney, 367 F.3d at 348).
5 Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (citing Freeman v. Gore, 483
F.3d 404, 410 (5th Cir. 2007)) (emphasis added).
6 Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006) (quoting Kinney, 367 F.3d at
347-48) (brackets omitted).
7 Palmer v. Johnson, 193 F.3d 346, 354 (5th Cir. 1999).
8 Charles, 522 F.3d at 513 n.17 (citing Williams v. Dall. Indep. Sch. Dist., 480 F.3d
689, 691-94 (5th Cir. 2007)).
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III.
“The doctrine of qualified immunity protects government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a reasonable person
would have known.’” 9 “To determine whether an official is entitled to qualified
immunity, the court asks (1) whether the plaintiff has alleged a violation of a
constitutional right, and (2) whether the defendant’s conduct was objectively
reasonable in light of the clearly established law at the time of the incident.” 10
The plaintiff bears the burden of negating the qualified immunity defense once
a defendant has properly raised it. 11
IV.
We first consider whether the summary judgment record contains
sufficient evidence to support the inference that the Board Defendants violated
Hardesty’s First Amendment rights. Viewing the evidence in the light most
favorable to Hardesty and deferring to the district court’s judgment regarding
the genuineness of factual disputes in the record, we conclude that it does.
Although public employees do not wholly relinquish their free speech
rights by virtue of accepting governmental employment, the First Amendment
nonetheless permits government employers to exercise a degree of control over
their employees’ words and actions. 12 Thus, to establish a prima facie case for
First Amendment retaliation, a public employee must show that:
9 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457
U.S. 800, 818 (1982)).
10 Charles, 522 F.3d at 511 (quoting Connelly v. Tex. Dep’t of Criminal Justice, 484
F.3d 343, 346 (5th Cir. 2007)).
11 Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (quoting Brumfield v.
Hollins, 551 F.3d 322, 326 (5th Cir. 2008)).
12 Phillips v. City of Dallas, 781 F.3d 772, 776 (5th Cir. 2015) (citing Lane v. Franks,
134 S. Ct. 2369, 2377 (2014); Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).
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(1) He suffered an adverse employment action;
(2) He spoke as a citizen, rather than pursuant to his official job
duties;
(3) He spoke on a matter of public concern;
(4) His interest in the speech outweighed the government’s
interest in the efficient provision of public services; and
(5) His speech precipitated the adverse employment action. 13
Defendants do not dispute that Hardesty has created a genuine issue of
material fact as to elements (1), (3), and (4). Defendants primarily argue that
Hardesty’s claim fails because he spoke pursuant to his official job duties,
rather than as a citizen. Defendants also contend that Hardesty engaged in
misconduct that justified his termination. We will address each issue in turn.
A.
“[W]hen public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications from
employer discipline.” 14 Thus, we must first consider whether Hardesty spoke
as a citizen, rather than as an employee, when he informed the District’s
customers of the Board’s annexation proposal.
The Supreme Court has declined to articulate a comprehensive
framework for determining whether and when a public employee is speaking
13 Wilson v. Tregre, --- F.3d ----, 2015 WL 2457394, at *2 (5th Cir. May 22, 2015)
(quoting Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007)).
14 Garcetti, 547 U.S. at 421 (2006).
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as a citizen. 15 Instead, the inquiry is practical and fact-intensive. 16
Nevertheless, courts have identified several factors relevant to that analysis.
First, if an employee’s job responsibilities require him to engage in the
speech in question, then the speech is not protected. 17 Thus, if the employer
has commissioned the speech or compensated the employee to make the
speech, then the speech clearly falls within the employee’s official duties. 18
The Court should also inquire whether the speech in question is “the
kind of activity engaged in by citizens who do not work for the government.” 19
If the speech has “no relevant analogue to speech by citizens who are not
government employees,” then it lacks First Amendment protection. 20
Because “[f]ormal job descriptions often bear little resemblance to the
duties an employee actually is expected to perform, . . . the listing of a given
task in an employee’s written job description is neither necessary nor sufficient
to demonstrate that conducting the task is within the scope of the employee’s
professional duties for First Amendment purposes.” 21 Nevertheless, a written
job description may still be “instructive.” 22
Additionally, when an employee merely voices a grievance up the chain
of command at his workplace, it is particularly likely that the employee is
speaking pursuant to his official duties. 23 Where, by contrast, “a public
employee takes his job concerns to persons outside the work place, . . . then
15 Gibson v. Kilpatrick, 773 F.3d 661, 667 (5th Cir. 2014) (citing Garcetti, 547 U.S. at
424).
16 See Garcetti, 547 U.S. at 424.
17 Williams, 480 F.3d at 693.
18 Garcetti, 547 U.S. at 422.
19 Id. at 423.
20 Id. at 424.
21 Id. at 424-25.
22 Gibson, 773 F.3d at 671 (citing Williams v. Riley, 275 F. App’x 385, 389 (5th Cir.
2008)).
23 See Wilson, 2015 WL 2457394, at *2; Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.
2008).
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those external communications are ordinarily not made as an employee, but as
a citizen.” 24 However, whether the employee directs the speech internally or
externally is not alone dispositive. 25
The fact that an employee gives a statement “in an unauthorized
manner, or in contravention of the wishes of his superiors does not convert his
statement . . . into protected citizen speech.” 26
Notably, it is not the content of the speech that matters, but rather the
role the speaker occupied when he said it. 27 Therefore, “[t]he 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.” 28
Consequently, the First Amendment protects speech even when it “concerns
information related to or learned through public employment.” 29
1.
The Board Defendants first argue that the district court erred by
considering an affidavit describing Hardesty’s job duties that he submitted in
response to the Board Defendants’ summary judgment motion. Hardesty
testified at his deposition that he “fe[lt] like [he] had a responsibility . . . as the
manager of the Water District” to inform the District’s customers about the
annexation proposal. Then, in his affidavit, Hardesty averred that telling the
District’s customers about the annexation plan was not part of his job duties.
24 Davis, 518 F.3d at 313 (citing Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006)). Accord
Charles, 522 F.3d at 514.
25 Gibson, 773 F.3d at 670; Williams, 480 F.3d at 694 n.1 (citations omitted).
26 Nixon, 511 F.3d at 499.
27 Davis, 518 F.3d at 312 (citing Williams, 480 F.3d at 692).
28 Hurst v. Lee Cnty., Miss., 764 F.3d 480, 484 (5th Cir. 2014) (citing Lane, 134 S. Ct.
at 2379).
29 Lane, 134 S. Ct. at 2377, 2379.
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The district court reconciled Hardesty’s affidavit with his deposition testimony
as follows:
Hardesty’s deposition testimony is susceptible to differing
interpretations. One interpretation is that when Hardesty said he
felt that he “had a responsibility” as the manager that he was
referring to an official responsibility – a task to be completed in
accordance with the requirements of his position. The other
interpretation is that Hardesty was referring to a moral
responsibility to inform the public arising from the unique access
to knowledge and experience he had as a plant manager. The
affidavit appears to be an attempt to clarify which of these
interpretations is appropriate, and because of the ambiguity of the
deposition testimony, the affidavit can be fairly considered as a
supplement to that testimony. Therefore, finding the affidavit to
be neither a sham nor so clearly contradictory as to warrant
exclusion, the court will consider the affidavit in ruling on the
defendants’ motions for summary judgment.
The Board Defendants claim that Hardesty may not create a genuine dispute
of material fact by submitting an affidavit that contradicts his earlier sworn
deposition testimony. 30
“This court does not allow a party to defeat a motion for summary
judgment using an affidavit that impeaches, without explanation, sworn
testimony.” 31 However, “[w]hen an affidavit merely supplements rather than
contradicts prior deposition testimony, the court may consider the affidavit
30 This issue arguably involves “the district court’s assessment of the facts established
by or inferable from the evidence.” See Palmer, 193 F.3d at 354. However, our precedent
suggests that, even though this is an interlocutory appeal, we nevertheless have jurisdiction
to consider whether the district court should have excluded Hardesty’s affidavit from the
summary judgment record. See Mersch v. City of Dall., Tex., 207 F.3d 732, 734-35 (5th Cir.
2000) (holding that this Court has jurisdiction to “review the admissibility of evidence on
appeal” in the context of an interlocutory appeal of an order denying qualified immunity).
31 S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (citing Thurman
v. Sears, Roebuck & Co., 952 F.2d 128, 137 n.23 (5th Cir. 1992); Albertson v. T.J. Stevenson
& Co., 749 F.2d 223, 228 (5th Cir. 1984)). Accord Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380,
386 (5th Cir. 2000) (citations omitted).
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when evaluating genuine issues in a motion for summary judgment.” 32 An
affidavit permissibly supplements earlier deposition testimony if it merely
“clarifie[s] or amplifie[s] the facts by giving greater detail or additional facts
not previously provided in the deposition.” 33 By contrast, if the affiant “was
thoroughly questioned” about the issue at the deposition and answered the
questions “unequivocal[ly],” contradictory averments in the subsequent
affidavit will not create a genuine dispute of material fact. 34
We conclude, essentially for the reasons given by the district court, that
Hardesty’s affidavit clarified, rather than contradicted, his ambiguous
deposition testimony. The district court was therefore allowed to consider the
affidavit when ruling on the Board Defendants’ summary judgment motion.
2.
Having dismissed the Board Defendants’ argument that the district
court improperly considered Hardesty’s affidavit, we next conclude that the
record evinces a dispute of material fact regarding whether Hardesty spoke as
a citizen.
After reviewing the summary judgment record in its entirety, the district
court concluded:
[A]lthough Hardesty’s job description lists “public relations with
customers,” this is not dispositive. While it is uncontroverted that
Hardesty acted as a representative for the Water District in
negotiating contracts, there is no evidence that making public
statements was ordinarily within his duties. Furthermore, even if
Hardesty’s job functions ordinarily included public statements,
this fact cannot be construed to mean that every communication
with an individual who happened to be a customer of the Water
32 S.W.S. Erectors, Inc., 72 F.3d at 496 (citing Clark v. Resistoflex Co., 854 F.2d 762,
766 (5th Cir. 1988)).
33 Id.
34 See Doe, 220 F.3d at 386 (citing Clark, 854 F.2d at 766-67).
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District would be pursuant to Hardesty’s official duties – even if
some of those conversations included information about his job or
opinions on issues related to his job.
There is no indication that these comments were characterized or
classified as official communications on behalf of the Water
District. There is similarly no allegation that the statements by
Hardesty were in furtherance of job performance of the Water
District’s interests. The comments were not made to all Water
District customers, and Hardesty had a prior personal relationship
with at least one of the individuals he spoke with. Therefore,
Hardesty’s speech was not within the course of his ordinary duties,
and he was speaking as a citizen for purposes of determining
whether this speech is entitled to protection under the Fourth [sic]
Amendment.
Again, we have “jurisdiction to review the materiality, but not the genuineness,
of the factual dispute[s]” identified by the district court. 35 We therefore take
the district court’s characterization of the facts as given.
The district court properly applied the law to those facts when
concluding that Hardesty’s speech was entitled to First Amendment
protection. The court correctly concluded that the fact that Hardesty’s job
description listed “public relations with customers” is not dispositive. 36 The
fact that Hardesty was not paid or ordered to inform customers of Board
proposals that could adversely affect them suggests that he spoke as a citizen
rather than pursuant to his job duties. 37 Although Hardesty communicated
information concerning and obtained during the course of his employment,
that does not deprive the speech of First Amendment protection. 38 The fact
that Hardesty raised his grievances externally rather than internally further
35 Newman, 703 F.3d at 761 (citing Freeman, 483 F.3d at 410) (emphasis added).
36 Garcetti, 547 U.S. at 424-25.
37 See id. at 422.
38 See Lane, 134 S. Ct. at 2377, 2379.
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indicates that he spoke as a citizen. 39 Likewise, discussing community affairs
and advising members of the community to attend and speak out at board
meetings is the sort of speech in which private citizens who do not work for the
government frequently engage. 40 We therefore decline to disturb the district
court’s ruling on this issue.
B.
The Board Defendants also argue that they lawfully fired Hardesty
because he engaged in various acts of misconduct unrelated to his speech. The
district court considered and rejected that argument. Per the district court:
While the court does not question there were quite possibly myriad
reasonable bases for terminating Hardesty’s employment, none of
those reasons were expressed in the basis for the motion to
terminate his employment at the Board meeting. The issue is not
whether Hardesty could have been disciplined for his actions, but
whether he would have been disciplined if he had not engaged in
protected speech.
Once again, we lack jurisdiction to review “the district court’s
assessment of the facts established by or inferable from the evidence;” we must
take the district court’s characterization of the evidence as given. 41 The Board
Defendants are challenging the district court’s assessment of the evidence of
Hardesty’s misconduct, so we have no jurisdiction to consider the Board
Defendants’ argument that they terminated Hardesty for reasons unrelated to
his First Amendment activities. 42
39 See Davis, 518 F.3d at 313 (citing Freitag, 468 F.3d 528); Charles, 522 F.3d at 514.
40 See Garcetti, 547 U.S. at 423-24 (“Employees who make public statements outside
the course of performing their official duties retain some possibility of First Amendment
protection because that is the kind of activity engaged in by citizens who do not work for the
government.”).
41 See Palmer, 193 F.3d at 354.
42 In an attempt to portray this issue as a purely legal question that this Court has
jurisdiction to consider on interlocutory review, Defendants analyze Hardesty’s alleged
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In any event, even if we did have jurisdiction to consider the Board
Defendants’ argument, we would reject it. “[S]ummary disposition of the
causation issue in First Amendment retaliation claims is generally
inappropriate.” 43 As the district court correctly noted, although the record
contains some evidence that Hardesty engaged in misconduct, it contains no
evidence that the Board Defendants terminated Hardesty and denied him a
raise for that reason. 44 Rather, all the evidence suggests that the Board
terminated Hardesty solely because of his speech acts.
V.
Because Hardesty has demonstrated a dispute of material fact with
respect to whether the Board Defendants retaliated against him for exercising
his First Amendment rights, we must proceed to the “clearly established law”
prong of the qualified immunity analysis.
“An official sued under § 1983 is entitled to qualified immunity unless it
is shown that the official violated a statutory or constitutional right that was
‘clearly established’ at the time of the challenged conduct.” 45 “[A] defendant
cannot be said to have violated a clearly established right unless the right’s
misconduct through the lens of the “objective reasonableness”/”clearly established law” prong
of the qualified immunity analysis, rather than the factual issue of causation. This is
disingenuous. The misconduct evidence clearly concerns a purely factual issue: whether the
Board terminated Hardesty for his speech or for some other reason.
43 Haverda v. Hays Cnty., 723 F.3d 586, 595 (5th Cir. 2013) (citing Click v. Copeland,
970 F.2d 106, 113-14 (5th Cir. 1992)).
44 On two occasions, the Board did chastise Hardesty for regularly starting work at
5:00 A.M. instead of the normal 7:00 A.M. start time without the Board’s approval, but the
record contains no evidence that the Board subjected Hardesty to any other discipline for
doing so. In any event, Defendants do not include that particular infraction in their list of
violations that supposedly justify Hardesty’s termination.
45 Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quoting Ashcroft v. al-Kidd, 131
S. Ct. 2074, 2080 (2011)).
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contours were sufficiently definite that any reasonable official in the
defendant’s shoes would have understood that he was violating it.” 46
In Cutler v. Stephen F. Austin State University, 767 F.3d 462 (5th Cir.
2014), we considered whether First Amendment retaliation principles
regarding public employees were clearly established prior to 2010. We
concluded that numerous Supreme Court and Fifth Circuit decisions gave the
defendants clear warning that when a public employee engages in speech
outside of his employment duties, and the employee directs his speech
externally rather than within the chain of command, the employer may not
discipline the employee for engaging in the speech in question. 47 The law was
therefore clearly established when the Board Defendants took adverse
employment actions against Hardesty in 2011 and 2012. The Supreme Court’s
recent decision in Lane v. Franks, 134 S. Ct. 2369 (2014) did not alter First
Amendment jurisprudence in any way that would render the currently
applicable law not clearly established under these facts. 48
We therefore affirm the district court’s order denying the Board
Defendants qualified immunity. We remand the case to the district court for
further proceedings.
AFFIRMED and REMANDED.
46 Id. (citing Ashcroft, 131 S. Ct. at 2083-84).
47 767 F.3d at 471-73 (citing Garcetti, 547 U.S. 410; Charles, 522 F.3d 508; Davis, 518
F.3d 304; Williams, 480 F.3d 689).
48 See Graziosi v. City of Greenville Miss., 775 F.3d 731, 737 n.7 (5th Cir. 2015)
(“Despite recognizing that aspects of Lane ‘appear to offer the prospect of new law,’ we
ultimately determined that, ‘Lane does not appear to have altered the standard for whether
public employees speak pursuant to their official duties, but appears rather to be an
application of Garcetti’s rule.’” (quoting Gibson, 773 F.3d at 668)); Cox v. Kaelin, 577 F. App’x
306, 313 (5th Cir. 2014) (per curiam) (holding, post-Lane, that “[t]he law is clearly established
that a public employee may be neither discharged nor demoted in retaliation for exercising
his First Amendment rights”).
14