272 F.3d 730 (5th Cir. 2001), 99-11206, Branton v City of Dallas

Docket Nº:99-11206
Citation:272 F.3d 730
Party Name:DEBORAH A. BRANTON, Plaintiff - Appellant v. THE CITY OF DALLAS; BENNIE R. CLICK, Chief of Police Individually & in His Official Capacity, Defendants - Appellees DEBORAH A. BRANTON, Plaintiff - Appellant v. THE CITY OF DALLAS, Defendant - Appellee
Case Date:November 09, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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272 F.3d 730 (5th Cir. 2001)

DEBORAH A. BRANTON, Plaintiff - Appellant


THE CITY OF DALLAS; BENNIE R. CLICK, Chief of Police Individually & in His Official Capacity, Defendants - Appellees

DEBORAH A. BRANTON, Plaintiff - Appellant


THE CITY OF DALLAS, Defendant - Appellee

No. 99-11206

United States Court of Appeals, Fifth Circuit

November 9, 2001

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Appeal from the United States District Court for the Northern District of Texas

Before POLITZ, SMITH, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

An internal affairs investigative officer in the Dallas Police Department filed this 42 U.S.C. § 1983 suit for employment retaliation in violation of her First Amendment right to free speech. The officer was downgraded in performance rating, removed from investigative and supervisory duties, and effectively disqualified for promotions and overtime pay because of her alleged improper ex parte communication with a hearing officer, an assistant city manager, in a police disciplinary case in which she served as investigator. The internal affairs officer appealed from the district court's grant of summary judgment in favor of the Chief of Police and the Police Department. We conclude that the statements made by the internal affairs officer addressed a matter of public concern; that the statements are entitled to First Amendment protection; and that the internal affairs officer's right to speak was clearly established at the time the Chief acted. Whether the internal affairs officer was subjected to adverse employment action because of the exercise and content of her speech or because her speech was improperly made in the form of an ex parte communication is a genuinely disputed issue of material fact. We therefore reverse the summary judgment and remand the case for further proceedings.

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In this case, before us for the second time,1 Plaintiff, Deborah A. Branton, has been employed by the Dallas Police Department since 1977. She has been a sergeant in the Office of Professional Standards, Internal Affairs Division ("IAD"), since 1989. After nearly two decades, her departmental resume contained twenty-one commendations and no indication of any reprimands for misconduct. Prior to the events leading up to this action, her duties included the investigation of internal and external complaints filed against sworn and non-sworn employees of the Dallas Police Department, supervising detectives assigned to the IAD, and appearing at administrative appeal hearings. At such hearings it was her duty as an internal affairs investigator to present the findings of her investigation of the case, to turn over her investigative file to the presiding officer, an assistant city manager, and to observe and ensure that no false or inaccurate information was offered.

In July 1995, Branton was assigned to investigate a complaint filed by Officer DeLois Thomas against Officers Thomas Popken and Billy Hattaway. In her complaint, Thomas alleged that Popken, an "International Instructor" in the use of police batons, had improperly accepted a fee of $125 from Hattaway for baton instructions and training, partially while on duty. Branton's investigation and report indicated that Popken admitted accepting a $125 check from Hattaway but claimed that he later tore it up; he said he only accepted the check so that he could honestly inform the international baton association that he had complied with what he thought was its rule when he certified that Hattaway had completed the course.

According to Branton's investigation, Thomas and Popken had apparently developed some animosity towards each other stemming from their common ambition to become certified as an International Instructor in police baton, of which there were only thirty-five in the world. Popken had been invited by Monadnock, the baton vendor who certified police officers according to their level of knowledge and proficiency in the use of the baton, to try out for certification. He applied to the city for funds to finance his travel to Colorado for that purpose. The officer in charge denied Popken's application, however, because Thomas had earlier been turned down for a similar request after she claimed she had been invited to apply for certification. The officer said that it would be unfair for the city to pay Popken's way after it refused to do so for Thomas. Popken called Monadnock and was told that Thomas had never been invited or told that she would be recommended for certification. Subsequently, Popken traveled to Colorado at his own expense and became certified as an International Instructor. Popken's new status authorized him to recertify Intermediate Instructors such as Hattaway and Thomas to give baton instructions to recruits or beginners.

Thomas's internal affairs complaint against Popken apparently arose out of their mutual animosity and her perception that Popken had unduly delayed her recertification. When Thomas told Branton that she had been invited by Lieutenant Art Sapp to become an International Instructor, Branton called Sapp to confirm this story. Sapp, however, denied "inviting" Thomas to become an International Instructor, but said he had only responded to her inquiry expressing interest in becoming one and replied that she would

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first have to complete additional training before he would consider nominating her.

Based on Branton's investigation and report, Chief Click suspended Popken for one day. Popken appealed the discipline imposed. On November 26, 1996, a hearing on the appeal was held before an Assistant City Manager, Levi Davis, the ultimate decision-maker in the matter; his decision was final and unappealable.

At the hearing, Thomas testified (not under oath) that Sapp had invited her to become an International Instructor. Branton, who attended the hearing as the investigating IAD officer, considered the testimony of Thomas to be false and in contravention of Chief Click's departmental ethical policy statement regarding truthfulness. Although Branton had, in accordance with her responsibilities, submitted her investigative report to Davis, Branton had personal knowledge that Davis did not read reports prior to hearings and, therefore, would be unaware that Thomas had testified falsely. Because one of her duties as an IAD investigator was to ensure that the testimony given at an official hearing was truthful, Branton said she felt obliged to protect the integrity of the investigative process and to report her concern about Thomas's testimony.

Branton testified that it was her intent to tell Davis about her concerns with Thomas's testimony during the hearing, but she was reluctant to create a confrontation with Thomas. Branton had already corrected Thomas's testimony on a different point during the hearing after Thomas created the impression that some sort of collusion was involved in the investigation of Popken's misconduct. Thomas testified that Executive Assistant Chief Manuel Vasquez had reduced one of the allegations of misconduct against Popken. Branton corrected this impression, stating that Chief Click had instructed her to change the allegation. Branton testified that when she brought this matter to Davis's attention during the hearing, the City Attorney appeared to be disturbed and upset. Therefore, she intended to raise her other concerns about Thomas's testimony after Thomas left the stand and asked the City Attorney when Thomas would be excused from the stand. The City Attorney, apparently still "irritated" that Branton had once before corrected Thomas's testimony, dismissively informed Branton that such a concern was "not [her] problem" but the problem of Popken's attorney.

Immediately after Thomas was excused, Davis closed the hearing. As those in attendance began to leave, Branton, in the presence of the City Attorney, requested the opportunity to speak with Davis. Davis excused the City Attorney, and Branton informed him of the inconsistency between Thomas's statement and Lieutenant Sapp's disclosures and her belief that Thomas's testimony on that matter had been false. Branton made no attempt to influence the outcome of the hearing or to persuade Davis as to the appropriateness of Popken's punishment. Davis made no indication that their conversation was inappropriate.

On December 3, 1996, Mr. Davis issued his decision reducing Popken's one-day suspension to a "letter of counseling." In addition, Davis ordered that Popken be reimbursed for his out-of-pocket expenses related to his International Instructor training, if the Department continued to request that he certify Intermediate baton instructors. Shortly after he received the decision, Chief Click informed Branton that she was being transferred out of IAD because of the post-hearing statement she had made to Davis. Although the Chief rescinded the transfer after conferring with the City Attorney, he stripped Branton of her duties and responsibilities as an investigator and supervisor, rescinded her authority to supervise detectives and other

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personnel, and assigned her to handle the "walk-in" complaints, a job viewed by IAD investigators as highly undesirable. More importantly, perhaps, the Chief placed an administrative disciplinary report in her file which is open to the public, jeopardizes her ability to receive a promotion or recover investigator status for at least three years, and prevents her from earning overtime pay.

Branton claimed she had never been advised of a policy against reporting a witness's misconduct to an assistant city manager, and she produced deposition testimony from Senior...

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