Davis v. Ector County, Tex.

• Decision Date: 30 December 1994
• Docket Number: No. 93-8376,93-8376
• Citation: 40 F.3d 777
• Parties: 10 IER Cases 225 Jerry DAVIS, Plaintiff-Appellee, Appellant, v. ECTOR COUNTY, TEXAS, et al., Defendants, Ector County, Texas, and John Smith, District Attorney of Ector County, Texas, Defendants-Appellants, O.A. "Bob" Brookshire, Individually and in his capacity as Ector County Sheriff, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 777

40 F.3d 777

10 IER Cases 225

Jerry DAVIS, Plaintiff-Appellee, Appellant, v. ECTOR COUNTY, TEXAS, et al., Defendants,

Ector County, Texas, and John Smith, District Attorney of

Ector County, Texas, Defendants-Appellants,

O.A. "Bob" Brookshire, Individually and in his capacity as

Ector County Sheriff, Defendant-Appellee.

No. 93-8376.

United States Court of Appeals, Fifth Circuit.

Dec. 30, 1994.

Rehearing Denied Feb. 1, 1995.

Jack O. Tidwell, Denis C. Dennis, McMahon, Tidwell, Hansen, Atkins & Fowler, P.C., Odessa, TX, for appellant.

Melissa Hirsch, Lori McBeath, Odessa, TX, for Davis.

Richard Andrew Bonner, Odessa, TX, for Brookshire.

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

Before WISDOM and JONES, Circuit Judges, and FITZWATER, District Judge ^*.

WISDOM, Circuit Judge:

The plaintiff, Jerry Davis, seeks redress in federal court for his loss of employment with the principal defendant, Ector County, Texas. Our decision today will only partially satisfy him: In part we affirm and in part we reverse the district court's judgment.

In November 1991, Davis filed suit against Ector County, Texas; Gary Garrison, individually and in his official capacity as Ector County District Attorney; Sheriff O.A. "Bob" Brookshire; and two deputy sheriffs, David Weaver and Eldon Blount. In his complaint, Davis alleged that the defendants fired him in retaliation for his sending a letter, the contents of which we detail below. In so doing, he contends, they violated his First Amendment rights and the Texas Whistle Blower Act ¹.

Davis began his tenure with Ector County as an investigator for the Permian Basin Drug Task Force ("Task Force") in June 1990. As a Task Force employee, Davis came under the supervision of the District Attorney who at that time was Gary Garrison. In October of 1991, his wife, Connie Davis, filed a sexual harassment claim against her employer, the Ector County Sheriff's Office, in the Ector County Commissioners' Court. At some point in this general time frame, Garrison admonished the plaintiff not to involve the Task Force or the District Attorney's office in his wife's lawsuit. As part of that warning, Garrison told Davis to stay away from the Sheriff's office and keep to a minimum his contacts with the Sheriff's employees.

The defining moment of this action came when Davis sent a letter to the Ector County Commissioners' Court. In that letter, Davis set out in detail his wife's allegations of sexual harassment at the Sheriff's office. Davis contends that he sought to underscore the seriousness of his wife's allegations and, more, squelch rumors that his wife's complaint was fabricated as a means of causing the current Sheriff to resign, or suffer a weakened public image. ² He asserts that he also sought to stave off a potential official coverup of sexual harassment in the Sheriff's Office.

When Garrison learned that Davis had written the letter to the court, he felt that Davis had defied him and he promptly terminated Davis's employment. Davis believes that he was terminated because he exercised his First Amendment rights and because he reported a violation of law to the Ector County Commissioners' Court. Accordingly, he filed suit. The defendants answered with the defense that Davis was discharged for insubordination and, in particular, enmeshing the Task Force in the private affairs of his wife.

Davis's suit touched off a meandering procedural journey that dismissed and reinstated claims and parties alike. In his First Amended Complaint, Davis alleged five causes of action, each relating to specific defendants. He alleged that Ector County and Garrison violated his First Amendment rights; that Ector County violated his rights under the Texas Whistle Blower Act; that Brookshire, Weaver, and Blount violated his liberty interest under the Fourteenth Amendment; that Ector County and Brookshire intentionally interfered with his business relationship; and that Brookshire made slanderous statements which damaged his reputation.

Garrison was the first defendant to file a summary judgment motion. The district court denied Garrison's motion on Davis's First Amendment claim but granted summary judgment on the Whistle Blower claim. Ector County filed a separate motion for summary judgment, which the district court similarly granted as to Davis's Whistle Blower claim. At that point, the court dismissed the Whistle Blower claim in its entirety. The district court similarly dismissed Davis's Fourteenth Amendment claim against Brookshire, Weaver, and Blount. ³

In March 1993, however, the district court granted Davis's motion to reinstate his Whistle Blower claim. In the interim, on January 1, 1993, John Smith began his term as District Attorney of Ector and, as such, replaced Garrison as the named defendant in the suit against the District Attorney in his official capacity.

Eventually a jury trial was held. The jury found against Smith, in his official capacity as District Attorney, and against Ector County on both the First Amendment and Whistle Blower claims. The jury awarded Davis $90,800 in compensatory damages and $200,000 in punitive damages. In accordance with the jury's verdict, the district court held that Davis take nothing from Brookshire in his individual or official capacities and that Ector County and Smith were liable jointly and severally. In addition, the court ordered that Davis be reinstated to his old job within ten days. Finally, the court denied the defendants's motion for a new trial. ⁴ Everybody appeals. ⁵

I. The First Amendment

The defendants assign three distinct errors to the trial court's judgment against them on Davis's First Amendment claim. First, they contend that the court erred in instructing the jury that Davis's speech was on a matter of public concern. Second, they contend that the court should have granted their motion for judgment on the grounds that the state's interest in promoting the efficiency of public services outweighed Davis's and the public's interest in the speech in question. Last, the defendants contend that the district court failed to identify the District Attorney as a policy maker of Ector County, a predicate to a finding of liability; accordingly, they assert, the court should have granted their motion for a new trial. We take these arguments in turn.

A.

The first question presented is whether the district court erred when it instructed the jury that the plaintiff's speech was on a matter of public concern. Davis's letter focused on the alleged sexual harassment of employees of the Ector County Sheriff's Department. It hinted at a possible coverup at the Sheriff's office which would prevent the matter from being fully investigated. ⁶ After a de novo review, ⁷ we conclude that the letter addresses matters of public concern.

The United States Supreme Court set the parameters for our inquiry in Connick v. Myers. ⁸ In Connick, the Court observed that speech concerning matters of public interest "is more than self-expression; it is the essence of self-government". Accordingly, speech by public employees on public issues "occupies the 'highest rung of the hierarchy of First Amendment values' ". ⁹ We note that, were we to find that the subject matter of Davis's letter is not a matter of public concern, our inquiry would end. ¹⁰

There is perhaps no subset of "matters of public concern" more important than bringing official misconduct to light. ¹¹ In Brawner v. City of Richardson, Tex. ¹² , we stated that "the disclosure of misbehavior by public officials is a matter of public interest and therefore deserves constitutional protection, especially when it concerns the operation of a [law enforcement agency]". ¹³ Davis's letter is squarely within Brawner 's ambit: it addresses the misbehavior of public officials (the sexual harassment of public employees) and discloses the possibility of an official coverup.

The defendants urge that we view Davis's letter differently by looking to his purpose in writing it. They contend that Davis's motivation in writing the letter was to dispel the rumors then circulating that his wife fabricated the sexual harassment charges so that Davis would have a clear path to the Sheriff's office. This is a purely private motive, they contend, outside the constitutional protection accorded to matters of public concern. For support they rely on Dodds v. Childers ¹⁴.

In Dodds, we held that a speaker's primary motivation may be considered when evaluating whether the letter addresses a matter of public concern. ¹⁵ In that particular case, we concluded that the letter-writer was more concerned with her job security and working conditions than with any issue in the public interest. ¹⁶ Hence, we held that Dodd's speech failed to constitute a matter of public concern. We were explicit, however, that a proper inquiry does not elevate motive to a determinative factor; instead, we are to examine the form, content, and context of the statement. ¹⁷

A review of the content, form, and context of Davis's letter reveals that, although Davis may have had mixed motives, his letter unquestionably addressed a matter of public concern. ¹⁸ As to content, the test is whether the information in the letter was "relevan[t] to the public's evaluation of the performance of governmental agencies". ¹⁹ "[R]eports of sexual harassment perpetrated" on public employees is of serious public import. ²⁰ The fact that he also sought to strengthen the credibility of his wife does nothing to dilute the public interest inherent in the letter's contents. ²¹

The form and context of Davis's letter lend further support to our conclusion. First, Davis wrote the letter in his capacity as a citizen, not as a public employee. ²² He signed the letter, "Jerry Davis, 1601 E. Century, Odessa, Texas 79762". ²³ Moreover, he has never been an employee of the Sheriff's office--the subject of the letter. Davis's additional letters to...