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.
No. 98-10638.
United States Court of Appeals, Fifth Circuit.
Feb. 23, 2000.
The agents identified specific articulable facts to support their reasonable suspicion for the stop, most significantly the characteristics of the area of the stop, including the proximity to the Sarita checkpoint, the rigid suspension of the vehicle, the type of vehicle, the dirty appearance of the passengers, and the time of the stop. When viewed in the light most favorable to the government and in the context of the agents’ previous knowledge and experience with alien smuggling cases in the area, these particular facts and inferences rationally drawn from them reasonably led the agents to suspect Chavez was transporting illegal aliens in his van.
CONCLUSION
Accordingly, this Court AFFIRMS the district court‘s denial of Chavez‘s motion to suppress evidence on the grounds that the initial stop had been supported by reasonable suspicion and did not violate the Fourth Amendment.
Luther T. Munford (argued), Kari Louise Foster, Phelps Dunbar, Jackson,
James K. Peden, III (argued), Gary C. Crapster, Strasburger & Price, Dallas, TX, for Hensley.
Michael Vance Powell (argued), April Renee Maurer, Locke, Liddell & Sapp, Dallas, TX, Charles M. Hinton, Jr., City Atty., Ronald Bradford Neighbor, First Asst. City Atty., William Frank Glazer, Asst. City Atty., Garland, TX, for City of Garland.
Before JONES and WIENER, Circuit Judges, and WALTER *, District Judge.
EDITH H. JONES, Circuit Judge:
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
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 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
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 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 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.
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 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 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.
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
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. Later, the district court granted summary judgment on the Plaintiffs’
After a seven-day trial, the jury found Hensley and Holifield individually liable under
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 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.
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, 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
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 v. Harris, 118 F.3d 359, 365 (5th Cir.1997). As Harrington assumed arguendo that plaintiffs’ speech was entitled to First Amendment protection, the offhand invo-
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 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 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
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,
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 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 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
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. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (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 to the Supreme Court‘s analysis in Pickering v. Bd. of Educ., 391 U.S. 563, 574, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (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
Breaux contends that his transfer to the Telephone 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
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 would not have felt compelled to resign.
B. City Manager Holifield
Despite Holifield‘s limited interaction with the Plaintiffs, the jury found Holifield liable under
In “assessing an individual supervisor‘s liability under
Holifield did not cause the Plaintiffs to suffer a 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
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 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
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
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 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 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
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., 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 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 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.
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 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 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
This court reverses the judgment for the Plaintiffs on their
AFFIRMED IN PART; REVERSED AND RENDERED IN PART.