Richard Dickey HAVERDA, Plaintiff-Appellant v. HAYS COUNTY; Hays County Sheriff‘s Office; Sheriff Gary Cutler, in his Official and Individual Capacities, Defendants-Appellees.
No. 12-51008.
United States Court of Appeals, Fifth Circuit.
July 17, 2013.
723 F.3d 586
The 2010 cost report presents a closer question. Oaks complains that a fiscal intermediary issued an initial/tentative adjustment of $0.00 for the 2010 reporting period, even though the injunction was in effect when the intermediary received that report. In other words, Oaks contends that during a portion of 2011 in which the injunction was in effect, an intermediary refused to make an adjusted payment that it would have dispersed but for the Notice.
The record does not support this argument. Oaks‘s 2010 cost report was postmarked May 31, 2011. The relevant fiscal intermediary received that report on June 2, 2011. It accepted the report on June 30, 2011. A manager at the intermediary declared—without apparent contradiction, and in line with CMS‘s Manual for intermediaries—that the intermediary had 60 days to make a tentative adjustment. Consequently, the intermediary had until August 29 to make an adjustment—long after the injunction and restraining order had expired. The record does not indicate that the intermediary would have acted more expeditiously but for the Notice. Oaks‘s argument to the district court was misleading, presumably unwittingly.
* * *
With the benefit of a clearer explanation than was given the able district court, we are persuaded that the government complied with the preliminary injunction while that injunction was in effect. We VACATE the finding of contempt and REVERSE the judgment of the district court.18
Michael A. Shaunessy, Eric Alexander Johnston (argued), Esq., Sedgwick, L.L.P., Austin, TX, for Defendants-Appellees.
Before ELROD and HIGGINSON, Circuit Judges, and MARTINEZ, District Judge.*
PHILIP R. MARTINEZ, District Judge.
Richard Haverda, a former employee of the Hays County Sheriff‘s Office, appeals the district court‘s grant of summary judgment for failure to establish a claim of First Amendment retaliation and on qualified immunity grounds. We conclude that (1) Haverda has presented sufficient evidence to raise a genuine dispute as to a material fact relating to his claim of First Amendment retaliation and (2) Defendants are not entitled to summary judgment on the basis of qualified immunity. We,
I. Facts and Proceedings
For over twenty years, Haverda was an employee of the Hays County Sheriff‘s Office. Haverda began his employment as a corrections officer in the Hays County Jail and was promoted to the position of Captain of Corrections in 2004. In this position, Haverda was responsible for maintaining the security of the Jail, developing procedures for proper maintenance of the Jail, and supervising the individuals maintaining the Jail. During the 2010 Hays County Sheriff‘s Election campaign, Haverda supported the incumbent, Sheriff Ratliff, in his race against Gary Cutler. Haverda assisted Sheriff Ratliff‘s campaign by placing signs in locations throughout Hays County and delivering food and water to campaign volunteers on Election Day. More notably, on October 6, 2010, the San Marcos Record published a letter to the editor written by Haverda in support of Sheriff Ratliff. Therein, Haverda wrote about jail inspections, the prospect of a new jail, Hays County‘s practice of outsourcing inmates, and the funding of the Jail. Haverda concluded the letter by stating, “Sheriff Ratliff is doing a great job. Sheriff Ratliff didn‘t come in here and bring a whole new staff like his alternative [c]onservative Mr. Cutler wants to do.” A month later, Gary Cutler won the election, taking office as Hays County Sheriff on November 15, 2010.
Subsequently, Sheriff Cutler hired Jaime Page as his Chief Deputy. During Sheriff Cutler‘s first week in office, Chief Deputy Page spent a night at the Hays County Jail to view and experience the conditions at the Jail. During the overnight visit, Chief Deputy Page discovered a number of health, safety, and security issues. Outside the Jail, Chief Deputy Page noted that numerous lights were out, the Jail grounds were covered in trash, and outdated measures were being used to secure the Jail‘s perimeter. Inside the Jail, Page noted rat feces on the floor of the infirmary and kitchen, mops sitting in buckets of rancid water, and an inoperable oven infested with roaches. Chief Deputy Page also discovered issues with the administration of the Jail. He found it problematic that the Jail Command Staff—consisting of Major Brad Robinson, Lieutenant Juan Saenz, and Haverda—all worked the same shift, which left the Jail unsupervised at times. Chief Deputy Page also discovered that inmates were being booked into the Jail without first undergoing a medical screening, that lights in the inmate cells were not turned off eight hours before breakfast was served, and that inmates were being outsourced to Guadalupe County when the Jail had the capacity to house them. Additionally, two inmates attempted to escape shortly after Chief Deputy Page‘s visit to the Jail; according to Chief Deputy Page, improper training and a lack of protocol were to blame.
After Chief Deputy Page‘s inspection and evaluation of the escape attempt, he recommended to Sheriff Cutler that all three Jail Command Staff members be terminated. Chief Deputy Page believed that all three Jail Command Staff members were equally responsible for the state of the Jail. However, Sheriff Cutler did not accept Chief Deputy Page‘s recommendation. Chief Deputy Page then proposed that Sheriff Cutler terminate the three Jail Command Staff members but suspend their terminations for sixty days to assess their performance in improving the Jail within that time frame. Sheriff Cutler evidently accepted this recommendation. On November 22, 2010, Chief Deputy Page
The parties contest Haverda‘s performance during the suspended termination period. According to Chief Deputy Page, Major Robinson and Lieutenant Saenz worked hard to improve the conditions at the Jail after being notified of their suspended terminations. Chief Deputy Page testified that while Haverda‘s performance had improved, it was mediocre at best and remained unacceptable. Page also testified that Haverda did not display any initiative to work, came into work at his leisure, would sit in the employee dining room for two hours at a time, kept a slovenly appearance, and sat in his office without interacting with his employees. In addition, Page testified that in December 2010, he assigned Haverda to oversee the painting of a trailer to be used for road work by the inmates. However, Haverda had not made any progress on the project by March 2011.
Haverda denies Page‘s allegations. Haverda testified that he dedicated himself to the Jail, completed assignments given to him, and had a professional work ethic. Haverda also denied sitting in the dining room for hours at a time during work hours, being unproductive, and keeping a slovenly appearance. In addition, Major Robinson testified that he did not recall seeing Haverda in the dining room for hours at a time, and Sheriff Cutler testified that he did not personally witness Haverda sitting in the dining room. Regarding the unfinished trailer project, Haverda offered a different explanation. Haverda testified that he asked Major Robinson about the funding for such a project and that Major Robinson told him that he would look into it. Thereafter, in February of 2011, Major Robinson informed Haverda that the project had been assigned to others.
On February 15, 2011, Major Robinson informed Haverda that he had been instructed by Chief Deputy Page to tell Haverda to “get on the train or . . . [Haverda would] be moved to [a] maintenance [position].” Major Robinson testified that he understood the phrase to mean that Haverda needed to meet the expectations of Sheriff Cutler and Chief Deputy Page. Chief Deputy Page testified that his instruction was due to Haverda‘s lack of command bearing, failure to make progress on tasks, and lack of leadership. Haverda was confused about the meaning of the phrase and feared that it referred to his political activity during the campaign. On February 16, 2011, Haverda delivered a memorandum to Sheriff Cutler setting out grievances and asking him to clarify the “get on the train” statement.
On February 23, 2011, Chief Deputy Page delivered a memorandum to Haverda, its contents signed and approved by Sheriff Cutler, demoting him to the position of Corrections Officer. Therein, Chief Deputy Page wrote, “Cutler kept his promise upon his election to the office of Hays County Sheriff not to terminate any Sheriff‘s employees.” The memorandum also described the poor conditions present at the Jail when Cutler took office and Chief Deputy Page‘s lack of confidence in Haverda as a leader and manager. The
On August 8, 2011, Haverda filed suit in the United States District Court for the Western District of Texas, alleging constitutional violations against Hays County; Hays County Sheriff‘s Office; and Sheriff Gary Cutler, in his official and individual capacities. Appellees moved for summary judgment, and the district court granted the motion. Appellants timely appealed.
II. Standards of Review
A. Summary Judgment Standard
We review a grant of summary judgment de novo, applying the same standard as the district court. Vaughn v. Woodforest Bank, 665 F.3d 632, 635 (5th Cir. 2011) (citing Rachid v. Jack in the Box, Inc., 376 F.3d 305, 308 (5th Cir. 2004)). Pursuant to
B. First Amendment Retaliation Standard
To prove a claim of First Amendment retaliation, a plaintiff must establish that “(1) [it] suffered an ‘adverse employment decision‘; (2) [its] speech involved ‘a matter of public concern‘; (3) [its] ‘interest in commenting on matters of public concern . . . outweighs the [d]efendant‘s interest in promoting efficiency‘; and (4) [its] speech motivated the adverse employment decision.” Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001) (quoting Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999)). Once a plaintiff has met his burden of showing that his protected speech was a substantial or motivating factor in the defendant‘s adverse employment decision, a
Finally, “[s]ummary judgment should be used most sparingly in . . . First Amendment cases . . . involving delicate constitutional rights, complex fact situations, disputed testimony, and questionable credibilities.” Beattie, 254 F.3d at 600 (quoting Benningfield v. City of Houston, 157 F.3d 369, 377 (5th Cir. 1998)); see also 10B Charles Alan Wright & Arthur R. Miller et al., Federal Practice and Procedure § 2732.2 (3d ed. 2013) (“[C]laims requiring a determination regarding intentions or motives are particularly unsuitable for summary adjudication. . . . If plaintiff‘s claim that some conduct on the part of defendant abridged their First Amendment rights, summary judgment may be precluded because questions concerning defendant‘s motives or knowledge must be determined.“) (footnotes omitted).
III. Analysis
A. First Amendment Retaliation Claim
In their Motion for Summary Judgment, Appellees do not contest the first three required elements for a First Amendment retaliation claim—that Haverda suffered an adverse employment action, that his speech involved a matter of public concern, and that his interest in commenting on matters of public concern outweighed Appellees’ interest in promoting efficiency. The Appellees limit their argument to whether Haverda has established (1) that his speech motivated his demotion; (2) that Appellees would not have demoted Haverda in the absence of that speech; and (3) that he was speaking as a citizen.
1. Haverda‘s Speech as a Motivating Factor in His Demotion
Haverda contends that the district court erred in determining that he failed to present evidence that his protected speech motivated his demotion. As evidence, Haverda offered comments made by Sheriff Cutler during a secretly recorded meeting, language in a demotion memorandum, and testimony of statements made to Haverda that he interpreted to be political in nature. In its analysis, the district court found that Sheriff Cutler‘s comments and the language in Chief Deputy Page‘s demotion memo were not direct evidence, and the court did not discuss the allegedly political statements. In assessing, at the summary judgment stage, whether Haverda offered sufficient evidence to establish that his protected speech was a motivating factor in his demotion, the district court inappropriately made credibility determinations and weighed the evidence.
First, Haverda offered the following quotes from his meeting with Sheriff Cutler as proof that Sheriff Cutler harbored resentment following the Sheriff‘s Election: (1) “Well the deal is, [Haverda], is that—you saw the campaign. I know you did. I know ‘cause I saw some comments you made and what not. . . .“; (2) “I think—matter of fact, I—that you made several comments I was gonna run everybody off. . . . I know you were part of sayin’ I was gonna run everybody off“; and (3) “[a] lotta people were too concerned about the outcome of the election.” According to Haverda, when Sheriff Cutler mentioned Haverda‘s comments during the
Second, Haverda offered language from the demotion memorandum, written and issued by Chief Deputy Page and approved and adopted by Sheriff Cutler, that referenced Sheriff Cutler‘s campaign promise not to terminate any employees. Haverda argues that Chief Deputy Page‘s reference to Sheriff Cutler‘s campaign promise, which Sheriff Cutler approved and adopted, is a euphemism meant to mask retaliatory intent. Haverda claims that by referencing the campaign promise, Chief Deputy Page and Sheriff Cutler were implying that they were not going to fire him in retaliation, like Haverda wrote in his letter to the editor, but were instead going to retaliate by demoting him several levels to the position of a corrections officer.
Third, Haverda offered statements made by Sheriff Cutler and Chief Deputy Page that Haverda interpreted as having a political meaning. Specifically, Haverda offered Chief Deputy Page‘s and Major Robinson‘s testimony that Chief Deputy Page instructed Major Robinson to tell Haverda that he needed to “get on the train.” Haverda argues that this statement, coupled with other statements about Haverda not “joining the team,” is a reference to Haverda not supporting Sheriff Cutler politically.
a. Sheriff Cutler‘s Statements During Secretly Taped Meeting
The district court considered Sheriff Cutler‘s statements during the secretly recorded meeting with Haverda and found that they did not constitute direct evidence that Haverda‘s speech was a motivating factor in his demotion. It reached this conclusion because (1) Sheriff Cutler testified that he was unsure whether he was aware of Haverda‘s letter at the time of the meeting, and (2) the court‘s review of the statements revealed that Sheriff Cutler‘s initial remark was the only reference to any of Haverda‘s campaign activities.
The district court‘s reasons for finding that Sheriff Cutler‘s statements did not constitute direct evidence are not convincing. As stated previously, at the summary judgment stage, a court must consider all the facts and evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in favor of the nonmoving party, not make credibility determinations, and not weigh the evidence. The district court‘s first reason, that Sheriff Cutler testified that he was unsure whether he was aware of the letter at the time of the meeting, draws inferences in favor of Appellees, the moving party. Sheriff Cutler never testified that he had not read the letter, but merely that he was uncertain whether he had read the letter. Haverda‘s letter to the editor specifically stated that Sheriff Cutler planned on bringing in a whole new staff. Significantly, Sheriff Cutler admitted during the secretly recorded meeting to have seen some of Haverda‘s comments during the campaign, and both the letter and Sheriff Cutler‘s comments reference the possibility of Sheriff Cutler “running everybody off.” For these reasons, the inferences that Sheriff Cutler had read Haverda‘s letter and that the statements were a negative reference to Haverda‘s letter are reasonable inferences that should be drawn in favor of Haverda, the nonmoving party.
The district court‘s second reason, that Sheriff Cutler‘s initial remark was the only
b. Demotion Memorandum and Allegedly Political Statements
Next, the district court considered the language in the demotion memorandum referencing Sheriff Cutler‘s campaign promise not to terminate any employees. The district court found that the mention of the campaign promise could not be viewed as a reference to Haverda‘s letter to the editor. Additionally, the district court did not consider the allegedly political statements, which Haverda offered as evidence. Although the language in the demotion memorandum and statements to “get on the train” or “join the team” do not appear to be retaliatory on their face, summary judgment evidence is not considered in a vacuum. A court must consider the evidence in the light most favorable to Haverda, which includes considering the demotion memorandum language and allegedly political statements in context with any other evidence, circumstantial or direct, that Haverda has offered. Based on the evidence Haverda presented, a court in summary judgment proceedings must infer that Sheriff Cutler was aware of Haverda‘s campaign activity and that he had a negative reaction to it. It follows then that the language in the demotion memorandum should be considered evidence that Sheriff Cutler was indirectly referencing his awareness of Haverda‘s letter to the editor and that the demotion was in retaliation for Haverda‘s speech. Likewise, statements about needing to “get on the train” and “join the team” can, and often do, carry a political connotation. Whether the demotion language and the allegedly political statements were meant to be retaliatory is not a question for the court to decide during a summary judgment analysis. This inquiry involves the credibility of the evidence and must be decided by the fact-finder. Considering these statements in context with the other evidence provided by Haverda, a court at the summary judgment stage must consider these statements as evidence of retaliation.
2. Appellees’ Explanation for Demoting Haverda
Next, Haverda contends that the district court erred when it decided that summary judgment should be granted because Haverda failed to rebut Appellees’ showing that Haverda would have been demoted in
Appellees, in support of their claim that they would have demoted Haverda in the absence of the letter to the editor, provided the following: (1) evidence that the Jail was in deplorable condition when Sheriff Cutler took office; (2) evidence that certain Jail procedures were inefficient or detrimental to inmates; (3) testimony of Chief Deputy Page concerning the attempted Jail escape and the lack of a response strategy; (4) testimony of Chief Deputy Page alleging that Haverda lacked motivation and leadership ability; (5) testimony of Chief Deputy Page alleging that Haverda would sit in the employee dining room for hours at a time during work hours; (6) testimony of Chief Deputy Page alleging that Haverda kept a slovenly appearance; and (7) testimony of Chief Deputy Page alleging that Haverda failed to complete a project to prepare a trailer.
Haverda presented the following evidence of pretext to suggest that Appellees would not have fired him in the absence of the protected speech: (1) the other two Jail Command Staff members, “equally responsible” for the Jail‘s condition by Chief Deputy Page‘s own admission, were not demoted or terminated; (2) none of the Jail Command Staff members, including Haverda, were terminated after the sixty-day suspended terminations; (3) testimony of Major Robinson that he would not have demoted Haverda, that he did not know why Haverda was demoted and others were not, and that he was surprised Haverda was demoted; (4) testimony of Major Robinson that he did not recall seeing Haverda sitting in the break room for hours; (5) testimony of Major Robinson that Haverda‘s appearance did not affect his work performance; (6) Haverda‘s own testimony providing an alternative and excusable explanation for failing to complete the trailer project; (7) the demotion memorandum, which did not identify any specific performance issues following Haverda‘s suspended termination; (8) the transcript of the secretly recorded meeting, which demonstrates that during the meeting Sheriff Cutler focused on performance problems prior to Haverda‘s suspended termination; and (9) a documented history of positive performance reviews.
The district court characterized Haverda‘s rebuttal evidence as merely disagreeing with the assessment of his performance, as arguing that Appellees’ evidence is merely subjective, and as arguing that reliance on the Jail condition to demote him is flawed. The court went on to hold that Haverda‘s offered evidence was unavailing and that Haverda had failed to rebut Appellees’ showing that they would have demoted Haverda in the absence of his protected speech. In reaching this conclusion, the district court erred by applying a mistaken standard of review and mischaracterizing Haverda‘s rebuttal arguments.
This Circuit has held that summary disposition of the causation issue in First Amendment retaliation claims is generally inappropriate. Click v. Copeland, 970 F.2d 106, 113-14 (5th Cir. 1992). Courts applying the Mt. Healthy doctrine in summary disposition analyses have held that if
In its analysis, the district court characterized Haverda‘s argument of pretext as merely disagreeing with the assessment of his performance and disagreeing about whether he deserved to be demoted. The district court cited several Fifth Circuit decisions for the proposition that simply disputing the underlying facts of an employer‘s decision is not sufficient to create a fact issue. However, the district court erred in its framing of Haverda‘s argument as merely disputing the underlying facts of Appellees’ decision, and, thus, the cases cited are inapposite.1
In the instant action, Haverda refutes Appellees’ evidence as to his alleged lack of motivation, lack of leadership, and failure to complete the trailer project. If
Appellees also argue, and present evidence, that the Jail‘s condition prior to Sheriff Cutler taking office was deplorable and provided sufficient grounds for termination. In support, Appellees cite Haverda‘s deposition testimony in which he was asked whether he felt it would have been “unreasonable for [Sheriff Cutler] to fire [Haverda] and [Major Robinson]” based on the condition of the Jail on the day that Sheriff Cutler issued suspended terminations to the Jail Command Staff members. Haverda answered, “Probably not.” While both Appellees and the district court place great weight on this admission, Haverda‘s admission, at best, merely establishes that it may not have been unreasonable to terminate the entire Jail Command Staff on the day that the entire Staff received suspended terminations. However, that is not the relevant issue. In order to avoid liability, Appellees must establish that they would have taken the same adverse employment action even in the absence of the protected speech. The issue is not whether Haverda could have been demoted for the condition of the Jail, but whether he would have been demoted if he had not engaged in protected speech. See Mt. Healthy, 429 U.S. at 287; Jordan v. Ector Cnty., 516 F.3d 290, 301 (5th Cir. 2008). “A borderline or marginal candidate should not have the employment question resolved against him because of constitutionally protected conduct.” Id. at 286.
Haverda has offered evidence that none of the other Jail Command Staff members equally responsible for the Jail‘s condition prior to Sheriff Cutler‘s arrival were demoted or terminated, even after the sixty-day suspended terminations. See Jordan, 516 F.3d at 301 (“However plausible, even compelling, the proffered justifications for firing [the plaintiff] sound in isolation, the evidence that others had engaged in conduct similar to [the plaintiff‘s] without being disciplined is sufficient for a reasonable jury to conclude that [the employer] would not have taken the same action in the absence of the protected conduct.“). He has also offered evidence of a history of positive performance reviews, as well as the testimony of Major Robinson stating that he did not know why Haverda was demoted and others were not. Further, Haverda highlights that the demotion memorandum does not explain how his performance was weaker than that of the other Jail Command Staff members, and that Sheriff Cutler could not explain this distinction during his deposition. A reasonable jury could consider this evidence, along with Haverda‘s other evidence, and find that Appellees failed to show that they would have terminated Haverda in the absence of the protected speech.
3. Speaking as a Citizen
Alternatively, Appellees contend that the district court‘s grant of summary judgment should be affirmed because Haverda was not speaking as a citizen when he wrote his letter to the editor. Pursuant to Garcetti v. Ceballos, 547 U.S. 410 (2006), for an employee‘s speech to be protected by the First
B. Qualified Immunity Analysis
Haverda also argues that the district court erred in determining that Appellees were entitled to summary judgment on the basis of qualified immunity. Qualified immunity shields a government official from liability based on his performance of discretionary functions. Beltran v. City of El Paso, 367 F.3d 299, 302-03 (5th Cir. 2004) (citation omitted). To determine whether qualified immunity is appropriate, a court undertakes a two-step analysis. First, a court evaluates whether, taking the facts in the light most favorable to the plaintiff, the official‘s conduct violated a constitutional right. Lytle v. Bexar Cnty., Tex., 560 F.3d 404, 409-10 (5th Cir. 2009). Second, a court must determine whether that constitutional right was clearly established at the time of the conduct. Id. at 410. “If the law was clearly established, the immunity defense ordinarily should fail, since a reasonably competent public official should know the law governing his conduct.” Harlow v. Fitzgerald, 457 U.S. 800, 818-19 (1982).
At the summary judgment stage, a court must take the facts in the light most favorable to the plaintiff and, if material facts are still disputed, “skip[] . . . over” these matters in its qualified immunity analysis. Barker, 651 F.2d at 1124. The district court granted summary judgment for Appellees after concluding that Haverda failed to allege an actionable violation of his First Amendment rights. But, for the reasons discussed above, Haverda has established genuine issues of material fact regarding whether he was terminated for exercising his protected right to free speech. The district court‘s belief that Appellees had established beyond dispute that they did not demote Haverda because of his speech has “nothing to do with the qualified immunity defense.” Id. Further, here, there is no doubt that Haverda had a clearly established constitutional right not to be fired for engaging in protected speech. See Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008) (“Terminating an employee for engaging in protected speech . . . is an objectively unreasonable violation of such an employee‘s First Amendment rights.“). Therefore, the district court erred in granting summary judgment on qualified immunity grounds. For these reasons, the Court reverses the district court‘s grant of qualified immunity.
IV. Conclusion
For the foregoing reasons, we conclude that the district court erred in granting summary judgment in Appellees’ favor on both Haverda‘s First Amendment retaliation claim and on Appellees’ qualified immunity defense. The Court intimates no opinion on the eventual merits of the litigation but is mindful of its limited role in determining whether summary judgment is proper. We, therefore, REVERSE the judgment entered in favor of Appellees and REMAND for further proceedings consistent with this opinion.
REVERSED and REMANDED.