Garza v. Rodriguez, 76-3898

• Decision Date: 14 September 1977
• Docket Number: No. 76-3898,76-3898
• Citation: 559 F.2d 259
• Parties: Eliseo GARZA, Plaintiff-Appellee, Cross-Appellant, v. Amador RODRIGUEZ, etc., Defendant, The County of Cameron, Defendant-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 259

559 F.2d 259

Eliseo GARZA, Plaintiff-Appellee, Cross-Appellant, v. Amador RODRIGUEZ, etc., Defendant The County of Cameron, Defendant-Appellant, Cross-Appellee.

No. 76-3898.

United States Court of Appeals Fifth Circuit.

Sept. 14, 1977.

Orrin W. Johnson, Harlingen, Tex., Joe K. Hendley, Asst. Crim. Dist. Atty., Brownsville, Tex., for Cameron County.

James C. Harrington, San Juan, Tex., James A. Douglas, San Benito, Tex., Melvin L. Wulf, Joel M. Gora, American Civil Liberties Union Foundation, New York City, for Eliseo Garza.

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

Before GEWIN, RONEY and HILL, Circuit Judges.

RONEY, Circuit Judge:

Eliseo Garza was an investigator for the Juvenile Probation Department of Cameron County, Texas. On the night of December 20, 1975, after a party, he was arrested for being drunk. He became belligerent, demanded preferential treatment as a probation officer, used abusively foul language, cursed the director of his department who was called to the police station, among others, finally calmed down and was permitted to go home. On February 6, 1976, he was fired.

Since the firing took place only after Garza indicated that he was going to sue the police, he filed suit against his department director, Amador Rodriguez, and the County claiming unconstitutional employment discharge. He requested a declaratory decree, damages, and an injunction.

A jury awarded no damages, but the district judge subsequently entered a mandatory injunction ordering defendants to reinstate Garza to his job. The County appeals the injunction; Garza cross-appeals the failure to award back pay. We reverse the injunction, and affirm on the cross-appeal.

The parties dispute jurisdiction. Plaintiff concedes that the County is not a person against whom a cause of action can be asserted under 42 U.S.C.A. § 1983. See City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973); Moor v. County of Almeda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973). Plaintiff asserts federal question jurisdiction, however, under 28 U.S.C.A. § 1331 claiming an amount in controversy in excess of $10,000. By the time the case came up for the district court equitable relief, the jury had already decided that the plaintiff suffered no damage. But the amount in controversy, not the actual damages sustained, controls this jurisdiction.

In St. Paul Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-289, 58 S.Ct. 586, 590, 82 L.Ed. 845 (1938), the Supreme Court held that "(i)t must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal." At the time Garza brought this suit he was still unemployed. He sought back pay at a rate of $800/month and alleged bad faith and malice which could entitle him to recover punitive damages. Although the jury did not award Garza any monetary damages, it was far from a "legal certainty" at the time of suit that he would not be entitled to more than $10,000. See Mount Healthy City Board of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977), 45 U.S.L.W. 4079, 4080 (Jan. 11, 1977). It appears, therefore, the County was properly before the district court pursuant to its § 1331 jurisdiction.

We cannot sustain, however, the district court's holding that plaintiff was improperly discharged. The Texas statute, Tex.Rev.Civ.Stat. art. 5142 (Vernon 1971), governing removal of juvenile probation officers, bestowed upon the County the authority to discharge Garza for any reason, or even for no reason "at any time." Nevertheless, he could not be discharged for the exercise of his constitutional rights. Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2513, 33 L.Ed.2d 570 (1972).

Garza's behavior and speech at the police station on December 20, 1975, have no constitutional First Amendment protection. Lewd, obscene, profane, slanderous "fighting" words are not entitled to constitutional protection. Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Nor can an employee claim First Amendment protection for speech used against him not because of speech itself, but because the speech evidences character traits undesirable in an employee. Megill v. Board of Regents, 541 F.2d 1073, 1085 (5th Cir. 1976). Since the district court found that Rodriguez had just cause to terminate Garza's employment because of the police station behavior, the question becomes whether the taking into consideration the threat to file a lawsuit invalidates the decision to fire.

Clearly, discharge because of the filing of a lawsuit can escape constitutional invalidity if such act affects the employee's ability to perform his job. Abbott v. Thetford, 534 F.2d 1101 (5th Cir. 1976) (en banc ), cert. denied, 430 U.S. 954, 97 S.Ct. 1598, 51 L.Ed.2d 804 (1977), 45 U.S.L.W. 3666 (April 5, 1977). Even though Rodriguez testified he was concerned about the effect such a lawsuit would have on the probation department's work with the police department, the jury and the judge found Garza's actions did not impede either the proper performance of his daily duties or the legitimate operations of the department.

On the other hand, in a decision not yet available to the district court in this case, the Supreme Court has recently rejected the notion that if "protected conduct played a part, 'substantial' or otherwise, in a decision" to fire, the decision would necessarily amount to a constitutional violation justifying action. Mount Healthy City Board of Educ. v. Doyle, supra 429 U.S. at 284, 97 S.Ct. 568. Applying the lessons of Mount Healthy to the facts of this case as found by the district judge requires reversal. The district judge found the County could...