Juarez v. Aguilar

• Citation: 666 F.3d 325,276 Ed. Law Rep. 45,33 IER Cases 336
• Decision Date: 22 December 2011
• Docket Number: No. 10–40611.,10–40611.
• Parties: Antonio JUAREZ, Plaintiff–Appellee, v. Rolando AGUILAR, Brownsville Independent School District Board of Trustees, Individually and in their Official Capacity; Ruben Cortez, Jr., Brownsville Independent School District Board of Trustees, Individually and in their Official Capacity; Joe Colunga, Brownsville Independent School District Board of Trustees, Individually and in their Official Capacity; Rick Zayas, Brownsville Independent School District Board of Trustees, Individually and in their Official Capacity, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

276 Ed. Law Rep. 45

33 IER Cases 336

666 F.3d 325

Antonio JUAREZ, Plaintiff–Appellee,

v.Rolando AGUILAR, Brownsville Independent School District Board of Trustees, Individually and in their Official Capacity; Ruben Cortez, Jr., Brownsville Independent School District Board of Trustees, Individually and in their Official Capacity; Joe Colunga, Brownsville Independent School District Board of Trustees, Individually and in their Official Capacity; Rick Zayas, Brownsville Independent School District Board of Trustees, Individually and in their Official Capacity, Defendants–Appellants.

No. 10–40611.

United States Court of Appeals, Fifth Circuit.

Dec. 22, 2011.

Frank Edward Perez, Frank E. Perez & Associates, P.C., Star Jones, Ben Richard Neece, Brownsville, TX, for Plaintiff–Appellee.

Roger Wade Hughes, Adams & Graham, L.L.P., Harlingen, TX, Defendants–Appellants.

Appeal from the United States District Court for the Southern District of Texas.

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

CARL E. STEWART, Circuit Judge:

The prior panel opinion, Juarez v. Aguilar, 659 F.3d 495 (5th Cir.2011), is hereby withdrawn, and this opinion is substituted therefor.

Before the court is the interlocutory appeal of Defendants–Appellants Rolando Aguilar, Ruben Cortez, Jr., Joe Colunga, and Rick Zayas (collectively, “Appellants”) from the district court's denial of summary judgment. Appellants, all members of the Brownsville Independent School District (“BISD”) Board of Trustees (“Board”), argue that the district court should have granted their motion for summary judgment because they are entitled to qualified immunity. We DISMISS the appeal in part and AFFIRM the district court's order in part.

I.

On August 12, 2008, the BISD hired Plaintiff–Appellee Antonio Juarez (“Juarez” or “Appellee”) as its Chief Financial Officer (“CFO”) pursuant to a one-year contract.¹ As CFO, Juarez made insurance recommendations to BISD's Board. One such endorsement recommended American Administration General's (“AAG”) bid as the best for the BISD's Stop Loss Insurance Coverage Contract. Juarez's recommendation created tension with members of the Board. Aguilar, Cortez, and Colunga accused Juarez of misinforming the Board regarding the AAG recommendation, while Cortez and Colunga opposed the recommendation and accused Juarez of lying. Cortez and Colunga complained to Hector Gonzales, then-BISD Superintendent.

Shortly after the AAG recommendation, Kent Whittemore, an employee of BISD, initiated a grievance contending that Juarez had lied to the Board. Juarez alleges that Whittemore's grievance was filed at the Appellants' behest, a tactic aligned with BISD's practice of “setting one employee to grieve against another,” so as to afford pretext when terminating employees. Whittemore's grievance was consolidated with a second Whittemore grievance and both were heard on January 20, 2009.

Gonzales responded to the controversy by offering Juarez a new position. According to Juarez, Gonzales told Juarez in November 2008 that if Juarez were to resign as CFO, Gonzales would reassign him as the BISD's Grants Administrator. Gonzales would later execute an affidavit in which he averred that he “understood, and believed [he] was conveying to Juarez that if Juarez performed satisfactorily in his newly assigned position, [Gonzales] would not have a problem to recommend renewal of [Juarez's] contract in the new position beyond the existing term of the contract, although, [Gonzales] never specifically told him that using those words.” Juarez resigned as CFO on November 24, 2008, with an acceptance of reassignment.

Between his resignation and the hearing concerning the Whittemore grievances on January 20, 2009, Juarez recorded conversations with Elizabeth Brito–Hatcher, a BISD employee, and Otis Powers, a former Trustee of BISD. According to the evidence submitted by Juarez, Brito–Hatcher told Juarez that the BISD was engaged in bidding irregularities, while Powers urged Juarez to file a grievance against Gonzales. Powers suggested to Juarez that if Juarez would file a grievance against Gonzales and blame Gonzales for the statement about the insurance recommendation, Juarez would be reinstated as CFO. Powers also told Juarez that BISD employees routinely used the filing of grievances as a way of advancing their careers.

On January 15, 2009, Juarez and his legal counsel approached the FBI with allegations of improprieties at BISD. During the meeting, Juarez told the FBI that the Appellants were “manipulating the bidding process for the [BISD]'s Stop [Loss] Insurance Coverage.” He also told the FBI about his meetings with Powers and Brito–Hatcher and played for the FBI his tape-recorded conversations.

The next day, Juarez filed a grievance based on his experience with the BISD and his conversations with Powers and Brito–Hatcher. Juarez also expressed concern that his abstention from the conspiracy to manipulate the bidding process would result in his termination. He says that he also rescinded his letter of resignation and asked to be restored as CFO. His grievance was later dismissed when Juarez and his legal counsel refused to participate on the grounds that the presiding officer at his hearing was a complained-of party in Juarez's grievance. His request for review at the next level of the grievance process was denied.

On January 20, 2009, counsel for Juarez objected to the continuance of Whittemore's grievance hearing on several grounds and stated that any action flowing from the hearing “[would] be retaliat[ory].” He further said that he “think[s] the Board is aware that Mr. Juarez has reported this activity to the law enforcement agencies.” Thereafter, neither Juarez's original contract as CFO nor his reassignment as Grants Administrator were renewed.

Juarez subsequently filed this suit. He alleges Appellants retaliated against him for exercising his First Amendment right to report illegal activity to law enforcement. His suit named Appellants in their official and individual capacities and alleged that the BISD violated the Texas Open Meetings Act, and that the Board conspired to manipulate the insurance bidding procedures. Appellants sought dismissal based on qualified immunity. The district court converted their motion to one for summary judgment and dismissed Juarez's Fourteenth Amendment Due Process claims brought pursuant to 42 U.S.C. § 1983; denied summary judgment on the retaliation claims brought against the Appellants in their official and individual capacities pursuant to § 1983; and further held that Appellants were not entitled to qualified immunity on summary judgment. The district court ruled that genuine issues of fact existed with respect to whether the Appellants' actions violated Juarez's rights under the First Amendment and whether those rights were clearly established at the time Appellants allegedly violated them.² This interlocutory appeal followed.

II.

This court has limited jurisdiction to conduct an interlocutory review of a district court's order denying a motion for summary judgment based upon qualified immunity. “Although a denial of a defendant's motion for summary judgment is ordinarily not immediately appealable, ... the denial of a motion for summary judgment based upon qualified immunity is a collateral order capable of immediate review.” Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.2004). Our jurisdiction extends to these appeals only “to the extent that [the denial of summary judgment] turns on an issue of law.” Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). In other words, “we can review the materiality of any factual disputes, but not their genuineness.” Kinney, 367 F.3d at 347 (quoting Wagner v. Bay City, 227 F.3d 316, 320 (5th Cir.2000)). We review the district court's conclusions concerning the legal consequences of the facts de novo. Kinney, 367 F.3d at 349.

Because of our limited jurisdiction, we only review certain aspects of a district court's denial of an official's motion for summary judgment based on qualified immunity. We have explained our jurisdiction to hear these interlocutory appeals by distinguishing between the two components of the district court's order: first, the decision that a “certain course of conduct would, as a matter of law, be objectively unreasonable in light of clearly established law”; and second, the decision that a “genuine issue of fact exists regarding whether the defendant(s) did, in fact, engage in such conduct.” Kinney, 367 F.3d at 346. When hearing interlocutory appeals of denials of summary judgment motions, our jurisdiction extends only to reviewing the district court's first determination, i.e., that a “certain course of conduct” would be “objectively unreasonable” as a matter of law. It does not extend to the district court's second determination that a genuine issue of fact exists as to whether appellant engaged in a “course of conduct” that is “objectively unreasonable.” Id. at 346–47. Accordingly, we do not apply to such appeals the Rule 56 standard that normally governs appeals of motions for summary judgment.

Instead, our precedent sets forth a two-step process to determine whether the “certain course of conduct” was “objectively unreasonable” as a matter of law. We first determine whether the official's conduct violated plaintiff's constitutional rights. Id. at 356. Then, we determine whether “the contours of [plaintiff's] right [were] sufficiently clear [at the time of the alleged violation] that a reasonable official would understand that what he is doing violates that right.” Id. at 356–57 (quoting Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987)).

In determining whether a “certain course of conduct” would be “objectively unreasonable” as a matter of law, we “consider only whether the district court erred in assessing the legal significance of the conduct that the district...