Culbertson v. Lykos
| Decision Date | 22 June 2015 |
| Docket Number | 13–20751.,Nos. 13–20569,s. 13–20569 |
| Citation | 790 F.3d 608 |
| Parties | Amanda CULBERTSON; Jorge Wong, Plaintiffs–Appellants v. Pat LYKOS ; Rachel Palmer ; Harris County, Defendants–Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Russell Scott Cook (argued), Melissa Anne Jacobs, Cook Law firm, Russell Louis Cook, Jr., Capitol Centre Building, Austin, TX, for Plaintiffs–Appellants.
Mary E. Baker (argued), Bruce Stephen Powers, Assistant County Attorney, County Attorney's Office, Katherine D. David (argued), Charles Michael Seely, Attorney, Houston, TX, Stacy R. Obenhaus, Dallas, TX, for Defendants–Appellees.
Appeals from the United States District Court for the Southern District of Texas.
Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
Former employees of the college that had contracted to oversee breath alcohol testing for the Harris County Sheriff's Office brought suit against the County, the District Attorney, and one of her assistants, for causing their termination by the college. The suit was brought under Section 1983 for violations of the plaintiffs' First Amendment rights. State law claims were also brought. The district court dismissed all claims and awarded attorneys' fees to the defendants. We conclude that some of the claims should not have been dismissed. We REVERSE in part, REVERSE the award of attorneys' fees, and REMAND for further proceedings.
This appeal is from a dismissal based on the pleadings. Our factual discussion thus draws from the complaint. Plaintiffs Amanda Culbertson and Jorge Wong are former employees of the Houston Police Department (“HPD”) in Harris County, Texas. Culbertson began working for HPD in 2006 as a criminal specialist in HPD's crime lab. She received her certification as a technical supervisor from the Texas Department of Public Safety. She eventually served as a technical supervisor of HPD's breath alcohol testing program. Wong began working as a criminalist in HPD's crime lab in 2009. He also received certification as a technical supervisor. The plaintiffs' duties included breath alcohol testing and maintaining the instruments used in HPD's Breath Alcohol Testing (“BAT”) vans. Both Culbertson and Wong believed that excessive temperatures and electrical problems with the instruments in the BAT vans could affect the integrity of the test results. They informed HPD officials of these concerns, but the problems were not resolved.
In March 2011, due in part to dissatisfaction with the BAT vans, Wong resigned from HPD and began working for Lone Star College. Culbertson resigned effective May 13, 2011, primarily due to her concerns about the BAT vans. She started working for Lone Star the same month. Lone Star was under contract to Harris County to provide technical supervisors to oversee the Harris County Sheriff's Office breath alcohol testing program. The yearly services contract (the “Contract”) was to end in the fall but was renewable. Harris County had contracted with Lone Star for nearly thirty years.
The Harris County District Attorney's office subpoenaed Culbertson to testify about a breath alcohol test at a trial set for the week of May 23, 2011. When Culbertson arrived to testify on May 25, she told the assistant district attorney she could testify to the monthly inspection records of the BAT vans and to the fact that the instrument in question worked properly during the inspection she conducted. In Culbertson's actual testimony, however, she would not state that the instrument was working properly the day the defendant took the test. The jury acquitted the defendant.
On June 3, then-Assistant District Attorney Rachel Palmer emailed one of the technical supervisors at Lone Star. She wrote that the DA's Office would not use Culbertson in future Harris County Sheriff's Office breath alcohol testing cases. Palmer drafted a memorandum to the DA Office Bureau Chief on July 11 discussing Culbertson's testimony on May 25. The memorandum stated that “[a]fter this debacle, we realized that she could not be trusted to testify in any breath test.” Palmer also stated she was “gravely concerned about [Culbertson's] ability to testify fairly in cases going forward.”
On July 26, a meeting was held with representatives from Lone Star, the Harris County Sheriff's Office, and the Harris County Commissioners Court to discuss the renewal of the Contract. The plaintiffs allege that an unwritten agreement was reached to renew the previous year's Contract. The Commissioners Court was to vote to approve the agreement in mid-September.
On July 27, Culbertson was subpoenaed by a defense attorney to testify in a suppression hearing. During the hearing, the defense attorney asked Culbertson about problems with the BAT vans. Culbertson testified that a “big reason” why she and Wong left HPD was because they were not being permitted to maintain the reliability of the equipment in the vans. Palmer, the assistant district attorney on the case, cross-examined Culbertson. During the cross-examination, the plaintiffs allege that Palmer acknowledged Culbertson was a “whistleblower.”
Shortly after Culbertson's testimony, Palmer and the DA's Office began investigating Culbertson for perjury. Culbertson hired an attorney. Culbertson claims that at this time she was told by someone that her technical supervisor certification was in jeopardy. She also contends that Palmer was telling prosecutors in the DA's Office that Culbertson was not credible.
In August, Culbertson met twice with individuals from the DA's Office to discuss concerns raised by her testimony and to explain what she had discussed with the manufacturer of the instruments used in the BAT vans. Palmer was at the second of these meetings. After the meetings, the DA's Office notified attorneys for two criminal defendants of potentially exculpatory or mitigating evidence based on Culbertson's concerns.
Around September 1, 2011, the plaintiffs allege that Palmer met with representatives from both the Harris County Sheriff's Office and the Harris County Commissioners Court. At this meeting, Palmer and the DA's Office recommended that Harris County contract with the Texas Department of Public Safety (“DPS”) for breath alcohol testing rather than with Lone Star. Culbertson asserts that then-District Attorney Pat Lykos,1 Assistant District Attorney Palmer, and the DA's Office sought to discredit Culbertson and Wong so that the Contract would be awarded to DPS instead of Lone Star. These efforts included other private conversations with representatives of the Commissioners Court.
At a September 13 meeting of the Commissioners Court, several defense attorneys expressed their opinion that the Contract between Lone Star and Harris County was ending due to Culbertson and Wong's actions as whistleblowers. During this meeting, one County Commissioner stated publicly that he supported terminating the Contract with Lone Star because the County should not work with someone who takes an adversarial position to the DA's Office. Palmer was present at the meeting.
On September 17, the Houston Chronicle newspaper published an article regarding HPD's knowledge of problems with the BAT van program. The article quoted Culbertson and Wong regarding their concerns about the vans. At the end of September, DPS employees removed breath alcohol testing instruments from Lone Star's facilities. At about the same time, DPS sent out proficiency samples to technical supervisors. The samples are used to test a technical supervisor's ability to prepare a prescribed solution. The proficiency samples had to be completed annually to maintain technical supervisor certification. DPS did not send samples to Culbertson or Wong.
On October 1, the Houston Chronicle published statements by Culbertson regarding her belief that the DA's Office had retaliated against her, including: “I think they had to make a choice between fixing the problem and silencing me, and it was easier to silence me or anyone else who spoke out.”
On October 4, the Harris County Commissioners Court formally approved the budget for Harris County. The budget included a contract with DPS for breath alcohol testing, thus ending the Contract with Lone Star. A spokesman for the Harris County Sheriff's Office stated publicly that his office understood that the DA's Office objected to the procedures or testimony provided by the Lone Star experts. As a result of the loss of the Contract, Lone Star terminated Culbertson and Wong on October 31, 2011.
The plaintiffs filed this lawsuit in December 2012. They claimed a violation of their free speech rights under the First Amendment and sought relief under 42 U.S.C. § 1983. They also brought state law claims. The defendants filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). Palmer also filed to dismiss pursuant to the Texas Citizens Participation Act (“TCPA”). In August 2013, the district court entered a final order granting those motions. Palmer then filed for attorneys' fees and sanctions, which were awarded in November 2013. The plaintiffs separately appealed from both rulings. We have consolidated the appeals. The plaintiffs settled with Lykos in her individual capacity, and she has been dismissed.
We review a district court's grant of a motion to dismiss under Rule 12(b)(6)de novo. Reece v. U.S. Bank Nat'l Ass'n, 762 F.3d 422, 424 (5th Cir.2014) (citation omitted). A complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” 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, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”Id. (citing Twombly, 550 U.S. at 556, 127...
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