Williams v. RileyWilliams v. Riley
Bruce Allen Koehler, Mounce, Green, Myers, Safi, Paxson & Galatzan, El Paso, TX, for Defendants-Appellees.
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Rebeca Perez, pro se, is seeking a subpoena to obtain a police report under the
David Alan Barfield, Steven Lloyd Lacey, Barfield & Associates, Jackson, MS, Anthony E. Nowak, Chamberlin & Nowak, Hernando, MS, for Defendants-Appellees.
Before WIENER, BARKSDALE, and DENNIS, Circuit Judges.
PER CURIAM:*
Tammy Williams, Earl Russell, and Cheryl Hambrick (Plaintiffs) contest the dismissal of their First Amendment and equal-protection claims involving their former public employer, in which they maintain they were terminated in retaliation for reporting an incident in their workplace to their supervisors. One of the principal issues is whether the dismissal was pursuant tо
I.
Plaintiffs worked as jailers at the DeSoto County Jail. In December 2004, while on duty, Plaintiffs-Jailers Williams and Hambrick witnessed an inmate being beaten by a Sergeant. Jailer Williams stepped in to stop the Sergeant; Jailers Williams and Hambrick reported the incident to their supervisor, Plaintiff-Deputy Sheriff Russell, who was also a jailer. Deputy Sheriff Russell told them to report the incident to another supervisor, Defendant-Deputy Sheriff Gatlin. Unable to reach Deputy Sheriff Gatlin, Jailers Williams and Russell contacted Captain Stewart, who was off-duty. Captain Stewart: came to the jail; informed Jailers Williams and Hambrick she had contacted Defendant-Deputy Sheriff Atkinson, the Chief Jailer; and instructed them to write a report and place it under Deputy Sheriff Atkinson‘s door. Jailer Hambrick did so. The next day, Plaintiffs were informed of unrelated charges of misconduct against them, given a hearing, and terminated from their employment. Defendant-Sheriff Riley was the sheriff.
Proceeding under
Defendants moved for reconsideration of their dismissal motion; Plaintiffs filed the amended complaint. In rеplying to Plaintiffs’ opposition to the motion for reconsideration, Defendants attached, inter alia, a copy of a page from the DeSoto County Sheriff‘s Department Operations Policy and Procedures (Policy), which purported to impose an offiсial duty on Plaintiffs to report the witnessed incident.
In September 2006, following a case-management conference, Defendants filed another
Plaintiffs moved to amend their complaint, and Defendants responded, attaching the Policy yet again. Ruling on the above-pending motions, the district court granted the motion to dismiss, stаting it did so under
II.
A.
It goes without saying that a
Although the district court did not reference the Policy and stated that, “even after viewing all of the facts in favor of the plaintiffs“, it was granting Defendants’
Accordingly, because it appears the Policy, a matter outside the pleadings, was considered, the dismissal was through a summary judgment and is reviewed de novo. E.g., Jackson, 789 F.2d at 310. In doing so, we consider the summary-judgment record, which includes the Policy and Plaintiffs’ declarations.
Summary judgment is apрropriate if there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law.
B.
Plaintiffs challenge the dismissal of their claims under
1.
Plaintiffs claim it was error to dismiss their claim for retaliation, in violation of their First Amendment rights to speak as citizens on matters of public concern. In that regard, at issue is whether a genuine issuе of material fact exists on whether their speech was made pursuant to their official job duties and, therefore, not protected by the First Amendment.
“[T]he First Amendment protects a public employee‘s right, in certain circumstances, to speak as a citizen addrеssing matters of public concern“. Garcetti, 547 U.S. at 417, 126 S.Ct. 1951 (citations omitted and emphasis added). “So long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are nec
But, “when public employees make statements рursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes“. Id. at 421, 126 S.Ct. 1951 (emphasis added); see Williams v. Dallas Ind. Sch. Dist., 480 F.3d 689, 693 (5th Cir.2007); Davis v. McKinney, 518 F.3d 304 (5th Cir.2008); Nixon v. City of Houston, 511 F.3d 494 (5th Cir.2007).
At issue, then, is whether a genuine issue of material fact exists on Garcetti‘s threshold inquiry—whether Plaintiffs’ speech was pursuant to their official duties. The district court held the speech was unprotected, pursuant to Garcetti. As discussed above, it stated: “it is undisputed that part of the plaintiffs’ official duty description [as noted supra, presumably evidenced by the Policy] includes reporting unlawful activity of other officers“. Riley, 481 F.Supp.2d at 584 (emphasis added).
The Policy, however, does not conclusively еstablish the speech was made “pursuant to their official duties“. Garcetti, 547 U.S. at 424-25, 126 S.Ct. 1951. Further, Plaintiffs’ declarations maintain, inter alia, no such duty was imposed upon them.
Along that line, even if the Policy undisputedly imposed a duty on Plaintiffs to report the incident they witnessed, it is error to rely solely upon an employer‘s written policy in determining official duties. Garcetti had “no occasion to articulate a comprehensive framework for defining the scope of an employee‘s duties” (the plaintiff in Garcetti conceded his speech was made pursuant to his official duties), but instructs “[t]he proper inquiry is a practical one“. Id. at 424, 126 S.Ct. 1951.
Formal job descriptions often bear little resemblance to the duties an employee actually is expected to perform, and 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.
Id. at 424-25, 126 S.Ct. 1951 (emphasis added). Accordingly, the district court erred by apparently relying solely upon Plaintiffs’ “official duty description“.
Neither is it dispositive that the speech was made within the workplace; nor that it concerned a matter related to Plaintiffs’ employment. Id. at 420-21, 126 S.Ct. 1951 (citing Givhan v. W. Line Consol. Sch. Dist., 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979)). Although it may be presumed that an employee‘s official job duties at a reasonable sheriff‘s department would include reporting сrimes perpetrated at work by department members, it is not clearly so here. Plaintiffs’ job duties as jailers are scarcely mentioned, save Plaintiffs’ denials that those duties included reporting the incident at issue. Defendants produced the Policy, but it concerns “impropеr conduct” and was not shown to be applicable. Again, Plaintiffs, as summary-judgment nonmovants, are accorded all reasonable inferences. See, e.g., Dean, 438 F.3d at 454.
Therefore, a genuine issue of material fact remains on whether the speech was: “pursuant to ... official duties” Plaintiffs “actually [were] expected to perform“, i.e., made “in the course of performing their official duties” under Garcetti, 547 U.S. at 421-25, 126 S.Ct. 1951. Accordingly, dismissal was improper.
Along that line, Plaintiffs maintain the district court should have granted leave to file a third amended complaint, to clarify their allegations that the speech was not made pursuant to their job duties. Denial of leave to amend is reviewed for an abuse of discretion. E.g., Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872 (5th Cir.2000).
The district court, relying on Garcetti, ruled the amendment would be futile. As discussed supra, however, a genuine issue of material fact exists on whether the speech was made pursuant to Plaintiffs’ job dutiеs. Accordingly, the district court abused its discretion in finding futility. See id. at 873. Therefore, on remand, Plaintiffs should be given leave to file the requested amended complaint.
3.
Finally, Plaintiffs maintain the district court erred in dismissing their Fourteenth Amendment equal-protection claim on the basis that Plaintiffs’ spеech is not protected by the First Amendment.
Plaintiffs’ equal-protection claim is based on the alleged retaliation against them for the exercise of their purported First Amendment rights—for reporting abusive activity by a member of the Sheriff‘s Department. In support, they rely on Village of Willowbrook v. Olech, 528 U.S. 562, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (holding a “class-of-one” equal-protection claim based on government‘s “irrational and wholly arbitrary” demand of an easement was cognizable), and Shipp v. McMahon, 234 F.3d 907 (5th Cir.) (holding equal-protection claim may be available based on unequal police protection if illegitimаte animus or ill-will motivated plaintiff‘s intentionally different treatment from others similarly-situated and no rational basis existed for such treatment), cert. denied, 532 U.S. 1052, 121 S.Ct. 2193, 149 L.Ed.2d 1024 (2001), overruled on other grounds, McClendon v. City of Columbia, 305 F.3d 314 (5th Cir.2002).
Assuming, arguendo, that a cognizable equal-protection claim may be based on a government-employer‘s selective enforcement of an employment policy, a “class-of-one” plaintiff must, at a minimum, show he “has been intentionally treated differently from others similarly situated“. Olech, 528 U.S. at 564, 120 S.Ct. 1073; Shipp, 234 F.3d at 916 (stating plaintiff must also allege “an illegitimate animus or ill-will motivated” the different treatment); see Mikeska v. City of Galveston, 451 F.3d 376, 381 & n. 4 (5th Cir.2006) (listing different types of class-of-one claims). Plaintiffs, however, have not alleged they were treated differently than similarly-situated individuals. Rather, they alleged being treated differently than those who did not report the same type of incident (i.e., did not engage in purported protected speech).
Therefore, Plaintiffs’ equal-protection claim “amounts to no more than a restatement of [their F]irst [A]mendment claim“. Thompson v. City of Starkville, Miss., 901 F.2d 456, 468 (5th Cir.1990). Accordingly, it was properly dismissed.
III.
For the foregoing reasons, the judgment is AFFIRMED in part and VACATED in part. This matter is REMANDED for further proceedings consistent with this opinion.