Click v. Copeland

• Decision Date: 01 September 1992
• Docket Number: No. 90-5624,90-5624
• Citation: 970 F.2d 106
• Parties: Larry CLICK and Don Falcon, Plaintiffs-Appellants, v. Harlon COPELAND, Sheriff and Bexar County, Texas, acting By and Through its county judge Tom Vickers and county commissioners, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 106

970 F.2d 106

Larry CLICK and Don Falcon, Plaintiffs-Appellants, v. Harlon COPELAND, Sheriff and Bexar County, Texas, acting By and Through its county judge Tom Vickers and county commissioners, Defendants-Appellees.

No. 90-5624.

United States Court of Appeals, Fifth Circuit.

Sept. 1, 1992.

Philip M. Ross, San Antonio, Tex., for plaintiffs-appellants.

Franklin Eastwood Wright, Cynthia G. Bivins, Groce, Locke & Hebdon, Wallace B. Jefferson, Crofts, Callaway & Jefferson, San Antonio, Tex., for Copeland and Bexar County.

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

Before HILL, ¹ KING, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Two sheriff's deputies sued the sheriff and the county under § 1983 alleging that their First Amendment rights were violated when the sheriff transferred them to less desirable positions in retaliation for announcing their candidacy for the sheriff's office. The district court directed a verdict in favor of both the sheriff and the county on grounds that the sheriff was entitled to qualified immunity and that the county was not otherwise liable. We vacate and remand.

I.

During all times relevant to this suit, defendant-appellee Harlon Copeland was Sheriff of Bexar County, and plaintiffs-appellants Larry Click and Tom Falcon were sheriff's deputies. Deputy Click was a civil warrants officer and Deputy Falcon was the chief criminal district court bailiff. Both jobs are classified in the law enforcement section of the sheriff's department, but neither involves policymaking.

Click and Falcon decided to run against Copeland for sheriff. In January 1988, around the day Falcon announced his candidacy, but seven months after Click announced his, Copeland transferred Click and Falcon from their positions in the law enforcement section to positions as jail guards in the detention center. The transfers were to be for an indefinite duration. ² Although the transfers did not result in a decrease in pay, each man considered his transfer a demotion.

Click and Falcon filed suit in state court against Copeland, in his individual and official capacities, Bexar County, and the county commissioners alleging various state and federal constitutional violations. The federal component of the complaint sought recovery under 42 U.S.C. § 1983 and alleged essentially that defendants took adverse employment actions against the plaintiffs in retaliation for exercising their First Amendment rights. Defendants later removed the suit to federal court.

The case was tried to a jury in February 1990. At the close of plaintiffs' case, the district court granted defendants' motions for directed verdicts. The district court ruled that Sheriff Copeland was entitled to qualified immunity and that the plaintiffs had proffered insufficient evidence to visit liability on the County commissioners. After their motion for a new trial was denied, plaintiffs timely appealed.

II.

Appellants argue first that the district court erred in concluding that Sheriff Copeland is entitled to qualified immunity on those claims against him in his individual capacity.

"A public official is protected by qualified immunity if a reasonable officer would have believed that his actions met constitutional standards. Significantly, the question is not whether the law was settled, viewed abstractly, but whether, measured by an objective standard, a reasonable officer would know that his action [was] illegal." Matherne v. Wilson, 851 F.2d 752, 756 (5th Cir.1988) (footnote omitted) (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987)). Thus we must decide whether it was "clearly established" in January 1988--when Copeland transferred Click and Falcon--that it was unconstitutional for a sheriff to transfer a nonpolicymaking employee to another section in retaliation for that employee's announced candidacy for sheriff. We divide the analysis into two parts: whether it was clearly established (1) that transfers, as distinguished from discharges, were actionable, and (2) that political activity, as distinguished from political belief, was protected.

A.

Sheriff Copeland contends that it was not clearly established in January 1988 that an intradepartmental transfer, even if retaliatory, could implicate the First Amendment. Copeland argues that it was not until Matherne v. Wilson, 851 F.2d 752 (5th Cir.1988), decided several months after the events of this case, that a reasonable sheriff would have known that he could not discharge a nonpolicymaking employee because of that employee's political activity. It follows, he suggests, that if the law were this unclear about discharges, then a reasonable sheriff certainly would not know that retaliatory transfers were taboo. In essence Copeland concludes that transfers alone do not "deprive" employees of any rights or privileges, a prerequisite to § 1983 liability. ³ The district court agreed with Copeland's analysis. We disagree.

Copeland has provided no authority that supports his discharge/transfer distinction. Matherne does not discuss such a distinction. Nor is it accurate to say that Matherne created new law when it concluded that an employer could be held liable if he discharged an employee for constitutionally impermissible reasons. In 1968 the Supreme Court concluded that even the threat of discharge can be a potent means of chilling the exercise of constitutional rights. See Pickering v. Board of Educ., 391 U.S. 563, 574, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (1968). Here, Deputy Click testified to a conversation he had with Sheriff Copeland in December 1987 in which Copeland allegedly said: "After the primary I'm firing the hell out of you." The jury is entitled to find that Copeland threatened Click with discharge. If so, then this alone would implicate Click's First Amendment rights.

But even if no weight is accorded Click's testimony that Copeland threatened to discharge him, there is sufficient evidence of other "deprivations" of plaintiffs' rights under § 1983. "Where ... important conditions of employment are involved, a public employee will not be foreclosed from § 1983 relief merely because the impermissible retaliation did not result in the termination of his employment." Bickel v. Burkhart, 632 F.2d 1251, 1255 n. 6 (5th Cir.1980). In Perry v. Sindermann, the Supreme Court made clear that

even though a person has no "right" to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely. It may not deny a benefit to a person on a basis that infringes his constitutionally protected interests--especially, his interest in freedom of speech. For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to "produce a result which [it] could not command directly." Speiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332 [1342], 2 L.Ed.2d 1460 [ (1958) ]. Such interference with constitutional rights is impermissible.

408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972).

Copeland maintains that his transfer of Click and Falcon to the jail was not a demotion because neither received a decrease in pay; in fact Falcon received a raise. Money alone, however, does not buy happiness. The Perry Court spoke of "benefits" generally, not just salary. The evidence adduced at trial strongly supports the proposition that jobs in the jail are not as interesting or prestigious as jobs in the law enforcement section. E.G. Reyes, the assistant director of security at the jail, testified that few people transferred voluntarily from law enforcement to detention positions and that "everybody" views a transfer from detention to law enforcement as a promotion. Andrea San Miguel, the civil service director, concurred in this assessment. She also testified that she had received eight appeals from those involuntarily transferred from law enforcement to detention, but only one appeal from a transfer the other way. Even Sheriff Copeland testified as to the general preference for law enforcement positions, commenting that "[r]ight this minute every one of [the jail guards] ... would like to be out in a patrol car, or do an investigation, or serving papers."

In short, Click and Falcon's transfers to the jail could be considered demotions, even though they suffered no reduction in salary. See Reeves v. Claiborne County Bd. of Educ., 828 F.2d 1096, 1100 (5th Cir.1987); Waters v. Chaffin, 684 F.2d 833, 837 n. 9 (11th Cir.1982) (any discipline implicates First Amendment, including demotion and transfer); Bennis v. Gable, 823 F.2d 723, 731 (3d Cir.1987) ("The constitutional violation is not in the harshness of the sanction applied, but in the imposition of any disciplinary action for the exercise of permissible free speech."); see also Fyfe v. Curlee, 902 F.2d 401, 404-05 (5th Cir.) (transfer without loss in pay), cert. denied, --- U.S. ----, 111 S.Ct. 346, 112 L.Ed.2d 310 (1990).

Further, there was evidence that Click and Falcon lost seniority rights when they were transferred to detention positions because, at the time, the jail and the law enforcement sections had different seniority systems. The jury was entitled to find that this loss affected opportunities for promotion. In 1980 this circuit recognized that loss of an opportunity for promotion is cognizable under § 1983. See Bickel v. Burkhart, 632 F.2d 1251, 1255 & n. 6 (5th Cir.1980).

Copeland relies on Delong v. United States, 621 F.2d 618 (4th Cir.1980), for the proposition that employee discipline is actionable only when it amounts to the "substantial equivalent of dismissal." See id. at 623; Parrett v. City of Connersville, Ind., 737 F.2d 690, 694 (7th Cir.1984), cert....