Benfield v. Magee, 18-30932

• Decision Date: 17 December 2019
• Docket Number: No. 18-30932,18-30932
• Citation: 945 F.3d 333
• Parties: Patrick A. BENFIELD; Brian Scott Warren, Plaintiffs - Appellees v. Joe D. MAGEE, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

945 F.3d 333

Patrick A. BENFIELD; Brian Scott Warren, Plaintiffs - Appellees

v.Joe D. MAGEE, Defendant - Appellant

No. 18-30932

United States Court of Appeals, Fifth Circuit.

FILED December 17, 2019

Bryce J. Denny, Law Office of Bryce Denny, Mansfield, LA, for Plaintiffs-Appellees.

Edwin Henry Byrd, III, Zachary Alexander Wilkes, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Shreveport, LA, for Defendant-Appellant.

Before STEWART, CLEMENT, and HO, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Plaintiffs Brian Warren and Patrick Benfield sued their boss, Joe Magee, claiming that he fired them for exercising their First Amendment free-speech and free-association rights. Magee moved to dismiss their claims based on qualified immunity. The district court held that Magee was entitled to qualified immunity for Benfield’s free-association claim but not for Warren’s or Benfield’s free-speech claims. Magee, on interlocutory appeal, challenges this denial of qualified immunity. We affirm in part, reverse in part, and remand for further proceedings.

I.

Warren and Benfield worked in Louisiana as paramedics for the Desoto Parish Emergency Medical Services. Louisiana paramedics must complete annual recertification training and submit reports of this training to a certification organization. The Desoto Parish EMS Medical Director had to sign these annual reports before submission. Joe Magee, the Desoto Parish EMS Administrator, would allegedly sign these reports on behalf of the Medical Director. When the reports were computerized in 2007, Magee allegedly instructed Warren to "check[ ] off the box for [the Medical Director’s] approval of the training hours," which he did. This box was apparently used in lieu of a physical signature.

In June 2015, Warren sent a letter to a member of the Desoto Parish Police Jury¹ suggesting changes to Desoto Parish EMS personnel, procedures, and policy. After submitting this letter, Warren claims that "Magee and some of his underlings" harassed him. This harassment included criticizing Warren’s religious beliefs, harassing him about going back to school, telling him to go to counseling or be fired, denying him a promotion, accusing him of acts of terrorism for hiring an attorney to sue the Desoto Parish EMS, accusing him of having women at the station for sexual purposes, and encouraging him to quit.

In December 2016, the new co-Medical Director asked Warren how he and Benfield had been recertified. Warren told him about the practice of checking the box for the Medical Director’s approval. Shortly thereafter, "[Magee] told [Warren] that he needed to quit ‘before something bad happened.’ " Warren does not explain what "something bad" might mean.

Later that month, Magee allegedly asked Benfield to provide a statement that Warren was not authorized to check the box for the Medical Director and that Magee had not authorized Warren to do so. Benfield refused because, according to him, the statement would have been false. Magee then suspended Warren and Benfield in early January 2017 for falsifying documents and training records. On January 26, 2017, Magee fired them.

Warren and Benfield sued Magee under 42 U.S.C. § 1983, alleging (1) that Magee "retaliated against [Warren] for expressing, in his capacity as a private citizen, matters of public concern" in his June 2015 letter to the Desoto Parish Police Jury; and (2) that Magee "retaliated against [Benfield] due to [Magee’s] perception that [Benfield] was allied with [Warren] and because [Benfield] would not provide false statements to the authorities or to [Magee] concerning [Warren]." Benfield also alleged a state-law whistleblower claim, but has since abandoned it.

Magee moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that he was entitled to qualified immunity because neither Warren nor Benfield adequately pleaded a constitutional violation and any alleged constitutional right was not clearly established. The district court granted the motion in part and denied it in part. The court held that Warren stated a free-speech claim and that clearly established law prohibited Magee from firing Warren for sending his June 2015 letter. But the court declined to consider whether to dismiss Benfield’s free-speech claim because Magee had challenged only Benfield’s free-association claim.

Magee appealed. He seeks interlocutory review of the district court’s denial of qualified immunity for both free-speech claims.²

II.

On interlocutory appeal, we review a district court’s denial of a qualified-immunity-based motion to dismiss de novo. Club Retro, L.L.C. v. Hilton , 568 F.3d 181, 194 (5th Cir. 2009). We accept all well-pleaded facts as true, drawing all reasonable inferences in the nonmoving party’s favor. Id. We do not, however, accept as true legal conclusions, conclusory statements, or " ‘naked assertion[s]’ devoid of ‘further factual enhancement.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 557, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must plead factual allegations that, if true, "raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. That is, the well-pleaded facts must make relief plausible, not merely possible. See Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

III.

A.

Magee argues that he is entitled to qualified immunity for Warren’s free-speech claim. Once a defendant raises a qualified-immunity defense, the burden shifts to the plaintiff to show that (1) the official violated a statutory or constitutional right, and (2) the right was "clearly established" at the time. Morgan v. Swanson , 659 F.3d 359, 371 (5th Cir. 2011) (en banc) (citing Ashcroft v. al-Kidd , 563 U.S. 731, 735, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011) ). A court can analyze either element first. Id.

Warren claims that Magee violated his constitutional rights by firing him in retaliation for exercising his First Amendment right to free speech. To establish such a First Amendment retaliatory-discharge claim, Warren must prove that (i) he suffered an adverse employment action; (ii) his speech involved a matter of public concern; (iii) his interest in speaking on the issue outweighed Magee’s interest in promoting workplace efficiency; and (iv) his speech was a substantial or motivating factor for Magee’s actions. Harris v. Victoria Indep. Sch. Dist. , 168 F.3d 216, 220 (5th Cir. 1999).

Magee argues that Warren failed to allege a causal connection between the June 2015 letter and his firing—i.e., that his letter was a substantial or motivating factor for his firing—that this letter was not protected speech, and that, even if it was, the law did not clearly establish that at the time. The parties do not dispute that Warren suffered an adverse employment action, and the district court correctly noted that Magee never addressed whether Warren’s interest in speaking on the issue outweighed Magee’s interest in promoting workplace efficiency. The issues, therefore, are (1) whether Warren’s speech was on a matter of public concern and (2) whether his June 2015 letter was a substantial or motivating factor for his firing. We agree with Magee that Warren failed to allege a sufficient causal connection between his letter and his firing. Thus, whether Warren’s letter was speech on a matter of public concern or not, Warren has not stated a First Amendment retaliatory-discharge claim.

Warren sent his letter in June 2015 and was fired in January 2017—a 19-month gap. "Close timing between an employee’s protected activity and an adverse action against him may provide the ‘causal connection’ required" to make out a prima facie retaliation case. Swanson v. Gen. Servs. Admin. , 110 F.3d 1180, 1188 (5th Cir. 1997) (citing Armstrong v. City of Dallas , 997 F.2d 62, 67 (5th Cir. 1993) ). But a 19-month gap is too long to show causation by itself. See, e.g. , Clark Cty. Sch. Dist. v. Breeden , 532 U.S. 268, 274, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (holding that 20-month gap "suggests, by itself, no causality at all"); Raggs v. Miss. Power & Light Co. , 278 F.3d 463, 472 (5th Cir. 2002) (finding five-month gap alone insufficient); Evans v. City of Houston , 246 F.3d 344, 354 (5th Cir. 2001) (noting that a district court in this circuit has found that "a time lapse of up to four months has been found sufficient" (emphasis added)). Thus, the timing, by itself, between Warren’s speech and his firing is not close enough to permit a plausible inference that Warren’s firing was causally connected to his speech.

This circuit has, however, allowed plaintiffs to show causation by relying on "a chronology of events from which retaliation may plausibly be inferred." Brady v. Hous. Indep. Sch. Dist. , 113 F.3d 1419, 1424 (5th Cir. 1997) (quoting Woods v. Smith , 60 F.3d 1161, 1166 (5th Cir. 1995) ). Warren’s chronology-of-events allegation is that Magee "and some of his underlings" harassed him after he submitted the June 2015 letter. But Warren’s allegations do virtually nothing to establish a chronology. He states that this harassment occurred sometime after the June 2015 letter, yet provides no further specificity. These are his harassment allegations in full:

Following the submission of the letter, [Warren] started being subject to harassment by [Magee] and some of his underlings. The harassment included, but was not limited to:

(A) Harassing [Warren] about going back to school;

(B) Criticizing or commenting upon [Warren’s] religious beliefs;

(C) Telling [Warren] to go to counseling or be terminated;

(D) Denying him a supervisor’s position;

(E) Accusing [Warren] of acts of terrorism for hiring an attorney to sue Desoto Parish EMS;

(F) Falsely accusing [Warren] of having woman [sic] at the station for sexual purposes; and

(G) Regularly encouraging him to quit his employment at Desoto Parish EMS.

These...