*4 harassment at the Sheriffs office. sexual JONES, Before WISDOM and Circuit sought Davis contends that he to underscore FITZWATER, Judge Judges, and District *. and, allegations the seriousness his wife’s more, squelch rumors that his wife’s com- WISDOM, Judge: Circuit plaint causing was as a means of fabricated Davis, Jerry in plaintiff, seeks redress resign, the current Sheriff to or suffer a employment court for his loss of federal public image.2 weakened He asserts he defendant, County, principal Ector Tex- sought potential also to stave off a official today only partially as. Our decision will coverup in of sexual harassment the Sheriff’s satisfy part him: In we affirm and in we Office. judgment. the district court’s
reverse When Garrison learned that Davis had court, against In Novеmber Davis filed suit written the letter to the he felt Texas; Garrison, County, Gary promptly him Ector indi- Davis had defied and he termi- vidually capacity employment. Ector and his official as nated Davis’s believes Attorney; County District O.A. “Bob” that he terminated because he exercised Sheriff was * Texas, Judge Northern rumors theorized that Davis himself was District District of These sitting by designation. putting plotting a run for Sheriff. As means of talk, end to that Davis attached to his letter 6252-16a, Republi- (Ver- two other letters he had written to the § art. Tex.Rev.Civ.Stat.Ann. disavowing party Supp.1993). updated can and chairmen Democratic non The statute has been running repre- appears as a and now at Tex.Gov’t Code Ann. intention Sheriff (Vernon seq. Supp.1994). party. §§ 554.001 et sentative of either rights against the District and because his official his First capacity. Ector of law to the reported a violation Accordingly, County Court. Commissioners’ Eventually jury trial was held. The The defendants answered with he filed suit. Smith, against capacity found his official discharged defense that Davis Attorney, against County enmeshing particular, insubordination on both the First Amendment and Whistle affairs of his the Task Force Blower claims. The awarded Davis
wife.
$90,800
$200,-
compensatory damages
punitive damages.
000 in
In accordance with
meandering pro-
Davis’s suit touched off
verdict,
jury’s
the district court held that
journey that dismissed and reinstat-
cedural
nothing
Davis take
from Brookshire in his
parties alike.
In his First
ed claims and
capacities
individual or official
and that Ector
Complaint,
alleged
five
Amended
County
jointly
and Smith were liable
action,
specific
relating
each
causes
addition,
severally.
the court ordered
alleged
County
that Ector
defendants. He
job
that Davis
reinstated to his old
be
within
his First Amendment
and Garrison violated
days. Finally,
ten
the court denied the de-
rights
rights;
violated his
Every-
fendants’s motion for a
trial.4
new
Act;
under the Texas Whistle
body appeals.5
*5
Brookshire, Weaver, and Blount violated his
liberty
the Fourteenth
interest
under
I. The First Amendment
Amendment;
County
Ector
and Brook-
assign
The defendants
three distinct errors
intentionally
shire
interfered with his busi-
judgment against
trial
court’s
them on
relationship;
made
ness
Brookshire
First, they
First
Davis’s
Amendment сlaim.
damaged
which
his
slanderous statements
in instructing
contend that the court erred
reputation.
speech
that Davis’s
was on a matter
was the first defendant to file a
Garrison
Second,
public
they
of
concern.
contend that
summary judgment motion. The district
granted
the court should have
their motion
motion on Davis’s
court denied Garrison’s
grounds
on the
that the state’s
granted
claim but
sum-
First Amendment
promoting
efficiency
public
interest
of
mary judgment
claim.
on the Whistle Blower
outweighed
public’s
services
and the
Davis’s
County
separate
Ector
filed a
motion for
Last,
speech
question.
interest in the
summary judgment,
court
which the district
defendants contend that
the district court
similarly granted as to Davis’s
Blow-
identify
Attorney
a
failed
the District
as
point,
er claim. At that
the court dismissed
policy
County, predicate
of Ector
a
maker
entirety.
claim in
the Whistle Blower
its
finding
liability; accordingly, they
of
as-
similarly
The district court
dismissed Davis’s
sert,
granted
the court should have
their
against
Amendment claim
Brook-
Fourteenth
argu-
motion for a new trial.
take these
shire, Weaver, and Blount.3
ments in turn.
1993, however,
In
March
the district
A.
granted
Davis’s motion
reinstate Whis-
interim,
January
question presented
tle Blower claim. In the
on
The first
is wheth
began his term as Dis-
er the district court erred when it instructed
John Smith
such,
plaintiffs speech
replaced
trict
of Ector
as
was on
fo-
public
as
defendant in the suit matter of
concern. Davis’s letter
Garrison
the named
charged
originally
point
cross-appeal
raised a
of
In that
that the defen-
5.Davis
well,
liberty
dropped
against
dants violated his Fourteenth Amendment
but later
it.
Brookshire
by falsely identifying
police
Hence,
him as a
interest
only
present appeal
concerns
raped
years
two
officer who
a female inmate
County
capacity and
and Smith in his official
previously.
only
those defendants vio-
of whether
issues
rights
First Amendment
and the
lated Davis's
forward,
point
opinion
4. From this
"defen-
Act.
Texas Whistle Blower
only
County
dants” refers
to Ector
and District
Attorney Smith.
public
the misbehavior of
ambit:
addresses
alleged sexual harassment
cused
(the
public
Sheriffs De-
sexual harassment of
em-
officials
employees
possible сoverup at
It hinted at a
partment.
possibility
discloses the
of an
ployees) and
prevent the
would
office which
coverup.
Sheriffs
official
fully
After
being
investigated.6
matter from
urge that we view Davis’s
The defendants
review,7
the letter
conclude that
we
a de novo
differently by looking
purpose in
to his
letter
public concern.
addresses matters
writing
They contend that Davis’s moti
it.
writing
dispel the
the letter was to
vation
Supreme
States
Court
The United
circulating
then
that his wife fabri
rumors
inquiry
for our
Con
parameters
set the
charges so that
cated the
harassment
sexual
Connick,
the Court ob
Myers.8
nick v.
path
have a clear
Davis would
Sheriffs
matters of
speech concerning
served
motive, they
purеly private
office. This is
self-expression;
than
public interest “is more
contend,
protection
the constitutional
outside
self-government”. Ac
it is the essence
public
matters of
concern. For
accorded to
by public employees on
cordingly, speech
rung
they rely on Dodds v.
“occupies
‘highest
support
Childers14.
public issues
hierarchy
”.9
of First
values’
Dodds,
pri-
speaker’s
we held that a
to find that the sub
were we
We note
when
mary motivation
be considered
ject
a matter of
of Davis’s letter
matter
evaluating
the letter addresses a
whether
concern,
inquiry would end.10
public
our
particu-
public
concern.15 In that
matter
case,
concluded that the
lar
letter-writer
no
of “mat
рerhaps
subset
There
job security
more concerned with her
important
more
than
public concern”
ters of
working
conditions than with
issue
light.11 In
misconduct to
bringing official
*6
Hence,
public
interest.16
we held that
Richardson, Tex.12,
City
we
v.
Brawner
of
speech
a
of
Dodd’s
failed to constitute matter
of
that “the disclosure misbehavior
stated
however,
public
explicit,
We were
concern.
public
of
interest
public
is a matter
officials
inquiry
proper
that a
does not elevate motive
protec
deserves constitutional
and therefore
instead,
factor;
are to
to a determinative
we
tion,
opera
the
especially when
concerns
form, content,
of
and contеxt
the
agency]”.13 examine the
tion of a
enforcement
[law
squarely
within Brawner’s
statement.17
letter
Davis’s
appeal,
judicial
inquiry
Although
subject
pretermits
concern
into other
of
6.
not
discharge).
previous
a
instance in
reasons
his affidavit to
alluded in
of,
department
but cov-
the Sheriff's
knew
which
Starkville, Miss.,
depart-
Thompson City
11.
v.
F.2d
up,
sexual harassment of some
901
ered
of
reference,
456,
(5th Cir.1990).
By
employees.
that
Davis in-
463
ment
place the letter here
issue into a
to
at
tends
187,
192
He contends that he wrote the
12. 855 F.2d
larger context.
any
attempt
similar
to interfere
to forestall
letter
(the
allega-
proper investigation
Thompson,
expo-
wife’s
a
into his
13. See
A review of the
instead of to
supervisor.24
his
letter
reveals
al
context of Davis’s
motives,
may have had mixed
though Davis
B.
unquestionably addressed a matter
his letter
content,
public
Not all matters of
concern
concern.18 As to
the test is
public
ripe
by public employees
are
for comment
information in the letter was
whether
all
Supreme
circumstances. The
Court has
public’s
to the
evaluation of the
“relevan[t]
instructed
we must consider the state’s
governmental
agencies”.19
performance
promoting
efficiency
interest
perpetrat
“[R]eports of sexual harassment
emp
public
provides through
services it
its
employees
public
public
is of serious
ed”
loyees.25 Although
weigh
number
sought
import.20 The fact that he also
to
factors,
(1)
inquiry
our
centers on three:
strengthen
credibility
of his wife does
speech
likely
generate
whethеr
nothing
public
interest
inherent
dilute
(2)
controversy
disruption;
whether
in the letter’s contents.21
speech impeded
general operation
(3)
department;
speech
whether the
af
The form and context of Davis’s letter
working relationships necessary
fected the
support
further
to our conclusion.
lend
proper functioning
County
of Ector
adm
First,
capacity
Davis wrote the letter
his
inistration26
Our review of these factors
citizen,
employee.22
public
as a
not as a
He
supports
the district court’s
letter,
Davis,
“Jerry
signed the
1601 E. Cen
speech outweighed
the value of the
Odessa,
Moreover,
tury,
Texas 79762”.23
speech posed
efficiency.
threat
employee
has never been an
of the Sheriffs
subject
office—the
of the letter. Davis’s ad
Our review of the record discloses no im-
Repub
pairment
efficiency
ditional letters to the Democratic and
of Ector
public
any County
parties
lican
further underscore the
administration or
offices as a
question,
nature of the letter in
as does his
result of Davis’s letter. No evidence exists
Davis,
catalyst
signed
"Jerry
18. The defendants have confused the
his letters
Permian Basin
is,
prompting
pur-
public employee,
Davis to write the letter with his
Task Force”—that
as a
pose
doing
catalyst
so.
was Davis’s real-
as a
citizen.
It is true that his letters to
many
allega-
Republican parties
ization that
believed that
wife’s
the Democrat and
contained
letters, however,
signature.
tions of sexual harassment were fabricated. His
Those
*7
however,
purpose,
dispel
by
was to
those rumors
disavowed his intention to run for Sheriff's of-
allegations.
issue,
detailing the seriousness of his wife's
fice.
letter at
the one sent to the
The
hoped
veracity
Court,
his letter would attest to the
signature
He
Commissioners'
contained his
charges.
his wife's
private
as a
citizen.
1152,
Lee,
(5th
Coughlin
19.
v.
946 F.2d
1157
principal
24. The fact that he wrote his
letter to
1991) (footnotes
quotations
Cir.
omitted).
and internal
than, say, posting
the court rather
a bill in a
public impor
public square does not affect the
Wilson,
speech
question.
tance of the
in
See
973
Center,
20. See Wilson v. UT Health
973 F.2d
(sрeaker
protection
F.2d at 1270
did not forfeit
denied,
1263,
Cir.1992),
(5th
-U.S.
1269
cert.
forum);
by choosing an
Johnston v. Har
internal
-,
1644,
(1993).
786
record,
upon
the error affected the
never been em-
by whom he has
based
partment,
words,
similarly
In other
does
logic, they
outcome of the case.
Using that
ployed.
sub-
charge
leave[ ]
did not concern
“as a whole
us with
charge
report
that Davis’s
and ineradicable doubt whether the
stantial
“employer”.
jury
properly guided in
has been
its delibera-
workplace
employer
The
have that doubt here.
tions”?45 We
ease, however,
County,
addressing
whistle
Although he was
supervisor.
gave
immediate
If we
Davis’s
sector,
of
blower cause
action
that the
narrow construction
the statute the
the need for a
Doggett
Justice
understood
protec
urge, a whistle blower’s
defendants
strong
reporting
element: “The
causation
depart
only so far as his
tion would extend
principal
these activities must have been the
assignment.
would contravene
mental
Such
employer’s
retaliation.”46
reason for
conclude that
purpose of the statute. We
added,
Doggett
“The
Significantly, Justice
concerning his em
reported violations
element
employer
refute the causation
concerning his
ployer and addressed issues
by proving dismissal for reasons other than
workplace.42
47
blowing.”
act of
The instruc-
whistle
have communicated this to the
tions should
B.
jury.
Although
that Davis
we conclude
part:
provided, in
The court’s instructions
action under the
proper
stated a
cause of
that, in
to recov-
You are instructed
order
Act,
we nonetheless
Texas Whistle
statute,
er under this
the Plaintiff must
of the district
must reverse
prove by
preponderance
of the evidence
instructions tendered to
court because the
that:
sufficiently vague
permit
as to
jury
were
discharged;
1. He was
uncertainty
of the ver
as to the correctness
discharged
reporting
2. He was
after
dict.
and because he
violations
the law
reviewing
“The function of the
report;
madе such a
satisfy
respect
court with
to instructions is
faith;
good
report
3. His
was made
tendency
no
itself that the instructions show
4.
The acts
jury
respect to
to confuse or mislead the
with
proximate
were a
principles of law.”43 The dis
applicable
any damages
cause of
sustained
instructing
wide latitude
trict court has
Plaintiff;
“ignore
law and we will thus
on the
suffered actual dam-
spite
of that
imperfections”.44
technical
ages.
deference,
if
will reverse we conclude that
respect
to the The second element focusses on causation
the trial court erred
fired).
(i.e.,
why
proffered to the
Davis was
defendants
instructions
requirement
ported).
The letter to the Commissioners' Court
42.Davis
also satisfied
report
appropriate
be made to the
law enforce
is well within
definition.
ment authorities. The Castaneda court defined
Stores, Inc.,
1256,
authority
appropriate
law enforcement
43. Roberts v. Wal-mart
7 F.3d
through legal
"any entity
capacity
pro
with the
1258
cesses or otherwise to take remedial action with
Castaneda,
271,
(5th
alleged
Brumley,
respect
831
277
Cir.
violation”.
44. Bender v.
1 F.3d
1993).
S.W.2d at 504. Accord Knowlton v. Greenwood
Dist.,
1172,
Independent
957 F.2d
School
(5th Cir.1992);
County Colunga,
(quoting Kyzar
Navega
v. Vale Do Ri Doce
see also Travis
cai, S.A.,
(5th Cir.1972),
(Tex.App.
cert.
S.W.2d
— Austin
denied,
denied) (legislature
"appro
410 U.S.
35 L.Ed.2d
writ
intended term
(1973)).
priate”
"sufficiently
to be
elastic" to include
having
compel
power to
сivil authorities
obedi
Winters,
case);
(Doggett,
particular
City
at 732
J. con-
S.W.2d
ence to the law in a
*10
Moreau,
(Tex.
curring).
697 S.W.2d
Dallas v.
1985, writ)
App.
(authority must have
no
— Dallas
power
duty
change
problem re-
47. Id. at 733.
and
to
the
when it failed to ments of a Whistle Blower
charge that the court erred
the court
jury:
instructed the
that, if the District Attor-
give an instruction
insubordination,
jury
ney
Davis for
fired
The
presumption
defendant
rebut this
agree.
by offering
proving
find for the defendants.48 We
evidence and
must
the de-
fendant fired such
for a nondis-
discharged ... be-
phrase
“He was
criminatory reason.50
report”
susceptible
made such a
is
cause he
precisely
That is
the instruction that should
First,
meanings.
it could mean that
of two
given
have been
here.51
brought
fired because he
facts to
Davis was
that,
Davis makes the broad assertion
if
report
in
that the District At-
light
a
—facts
speech
question
protected by
in
torney
preferred
keep
to
from
would have
Amendment,
First
it cannot be insubordina-
construction,
jury
a
public.
Under that
right
to
speak.
tion
exercise the
to
properly could find that the Whistle Blower
issue, however, is whether the defendants’s
Act had been violated.
actions violated the Texas Whistle Blower
If
discharged
Act.
Davis was
for insubordi-
meaning
phrase
But the
has another
opposed
being discharged
nation as
to
hand,
likely
case at
a
one.
It could
exercising
protected right
retaliation for
mean that Davis was fired because he made a
speak,
to
the cause of action would not lie.
i.e.,
defying
report;
for insubordination
Although
impossible
say
it
whether
stay
office.
the orders
clear
Sheriff’s
law,
jury properly
understood the
we
construction,
probable
jury
a
Under
given
conclude that the instruction that was
damages
could not award
under the Whistle
prejudiced
jury
the defense.
It allowed the
Attorney’s
Act because the District
answer the second element
the affirma-
objection
to the
would not have been
content
sup-
tive under facts that would not have
(i.e.,
violation),
reporting a
of the letter
but
ported a
Blower Act claim. For that
letter,
by writing a
risked involv-
reason, we reverse and remand.52
ing
Attorney’s
the District
office in his wife’s
Attorney’s per-
lawsuit. From the District
III.
spective, might
fortuitous that
be
foregoing,
In accordance with the
the trial
reported
the letter
a violation
the law.49
is AFFIRMED on the First
case,
district court
the Knowlton
and
and
issues
REVERSED
gave jury instructions that avoided this er- REMANDED on the Texas Whistle Blower
jury
instructing
ror. After
on the ele- Act issues.53
properly
compel
objected
the facts of
case to
the often fine
note
the defendants
proffered
distinctions
conduct
that would and
to the trial court’s
between
instructions
support
proposed
a
of ac
would have cured
conduct that would not
cause
a
instruction which
tion, the
instruction
assigned
Mijalis,
court’s
would suffice.
error. See F.D.I.C. v.
Green,
(5th Cir.1994) (defendants
Dept.
Texas
Human Services v.
must
(Tex.App.
error
proposed
S.W.2d
show "as
threshold matter that the
— Austin
denied) (the
law").
“[D]id
instruction
Defendants retali
correctly
instruction
stated the
against
reporting
ate
Plaintiff for
... violations
example,
49. For
had Davis not referred to his
sufficiently
jury on neces
instructed
law?"
but,
antagonism,
case
out
wife's
written
however,
link). Here,
sary causal
Garrison’s ad
intending
letter
to insult the Sheriff's
derisive
office,
required
monitions to Davis
ingly distinguish
know
Attorney might
the District
have taken
permissible
imper
between
precisely
discharging
the same course of
discharge.
missible reasons for the
The court
action—
reason,
precisely
Davis—for
the same
insubordi-
given
should have
the Knowlton instruсtion or
departmental
orders.
nation
disobedience
similar instruction.
report
times would have
The content
all
holding,
light
address
In the
of our
do not
immaterial,
report-
chance
been
even if
remaining
the defendants'
contention that
ed a violation.
it submitted the issue of
district court erred when
Knowlton,
punitive damages
jury.
51. We do not hold that this instruction need be 53. We note that the every violation as given Act Where awarded for the First Amendment Whistle Blower case. *11 by preponderance of the evidence FITZWATER, Judge, concurring shown Plaintiff that he would have dismissed the dissenting part: part if the Plaintiff had for other reasons even majority’s the resolution join completely I activity. protected sрeech not exercised his claim, and plaintiffs First you If find that the Defendant would have opinion. I its I part concur therefore insubordination, Plaintiff for dismissed the major- portions of the agree with certain also your verdict should be for the Defen- then plaintiffs Texas Whistle ity’s analysis of against you If find for the Plaintiff dant. join part and therefore Blower Act defense, you must the Defendant on their 11(A) agree I do not opinion. the Because the issue of Plaintiffs dam- then decide regarding court’s instruction the trial ages. plaintiffs Whistle causation element instruction). (quoting requested error, I reversible claim constitutes Blower 11(B). uniformly apply did not to I would This instruction respectfully dissent from referring By claims.1 in the first sen- judgment insofar both uphold Blower the Whistle speech activity,” in- “protected damages, and I would tence actual as it awards correctly ap- struction did not state the law contention —unreached defendants’ address jury’s plicable Blower claim. majority award of to the Whistle —that damages reversed because punitive must be Moreover, assuming that the second and of the malicious conduct there is no evidence third can be removed from the sentences recovery. necessary support such a that is analyzed in iso- instruction as whole lation, they correctly likewise do not state I instructs the the law. The second sentence jury for the that it should return verdict correctly analyzes juris- majority defendant if the finds “that the Defen- of the trial prudence governs our review for dant would have dismissed the Plaintiff quarrel I do not with its instructions. court’s added). (emphasis I insubordination.” I un- applicable law. am discussion of susceptible instruction is would hold that this able, however, join the conclusion that the meanings: that defen- of either of these two in- Blower causation trial court’s Whistle plaintiff dant fact dismissed insubordi- error. constitutes reversible struction (the meaning defendants-appellants nation it), give or that defendant intended at some A insubordination, point to dismiss matter that I hold as a threshold would terminated him on some other but instead require- comply with the defendants did not basis. they proposed submit a instructiоn ment that requested instruction is itself Because correctly states the law. See FDIC ambiguous,21 trial court would hold Mijalis, it re- did not commit reversible error when requested that the trial court Defendants jury. give fused to the instruction to the give following instruction “for both the B ac-
First Amendment tion,” Appellants Br. at 28: see major- respectfully disagree I also ity’s you Plaintiff conclusion that the could reason-
If
find that
has estab-
claim, you
ably
interpreted
instruc-
of his
must
have
the causation
lished each element
to find defendants liable
then
whether the Defendant has
tion
allow
decide
Hence,
place
claim.
verb form in
of the word "had” in a condi-
well as the Whistle Blower Act
damages
holding
only
punitive
our
affects
by the word "if.” For
tional clause introduced
award.
likely
the second sentence to read as defendants
stated,
it, the
should have
"If
intended
sentence
majority opinion expressly differentiates
1. The
you
had
find that the Defendant
dismissed
Whistle Blow-
between the First Amendment and
insubordination,
your verdict
Plaintiff for
then
maj. op. at 787.
er claims. See
should be for the Defendant.”
ambiguity apparently
2. This
arises from defen-
auxiliary
dants' misuse of “would have” as
*12
reprimanding plaintiff
significant,
for
for insub-
because Knowlton the district
protected
than
conduct
ordination rather
court
jury
also instructed the
that
if the
by the Texas
Act.
Whistle Blower
plaintiff met
proof
her burden of
as to all
majority quotes
applicable elements,
the causation
jury
element
then the
pre-
must
by inserting ellipses
place of the
words
plaintiff
sume that
was discharged or
reporting
“after
violations of the law and.”
suspended in
violation
the Act. See
maj. op.
See
at 787. It then concludes that Knowlton,
jects today very given similar one (in Knowlton. See 957 at 1179 n. 10 structing plaintiff prove must inter BARKER, Plaintiff-Appellant, Gerald alia that she “discharged reporting was after a violation of the law the reason that she made such a report”). But aside from Secretary, Depart Donna SHALALA, E. particular Knowlton instruction that ment of Health Human Ser majority would require neither re vices, Defendant-Appellee. quested by appli defendants nor shown to be present cable to the ease. No. 93-6122. majority holds that the trial court United Appeals, States Court
should have instructed the Sixth Circuit. The defendant presump- rebut this by offering tion proving evidence and Argued Aug. defendant fired such for a nondis- Aug. Decided 1994 *. eriminatory reason.
Maj. Knowlton, op. at 787 (quoting 1179) added) (footnote deleted). (emphasis “may
The words presumption” rebut this are * originally "unpub- opinion This decision was issued as publi- as one recommended for full-text August lished decision” filed on 1994. On cation. 4, 1994, designated November the court