Hitt v. Connell

• Decision Date: 31 July 2002
• Docket Number: No. 01-50117.,No. 01-51010.,01-50117.,01-51010.
• Citation: 301 F.3d 240
• Parties: Harold Merritt HITT, Plaintiff-Counter-Defendant-Appellee, v. Jerry CONNELL, Etc.; et al., Defendants, Jerry Connell, Bexar County Constable, Precinct 2, Individually and in His Official Capacity, Defendant-Counter-Claimant-Appellant. Harold Merritt Hitt, Plaintiff-Appellee, v. Jerry Connell, Etc.; et al., Defendants, Jerry Connell, Bexar County Constable, Precinct 2, Individually and in his official capacity, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

301 F.3d 240

Harold Merritt HITT, Plaintiff-Counter-Defendant-Appellee, v. Jerry CONNELL, Etc.; et al., Defendants, Jerry Connell, Bexar County Constable, Precinct 2, Individually and in His Official Capacity, Defendant-Counter-Claimant-Appellant.

Harold Merritt Hitt, Plaintiff-Appellee, v. Jerry Connell, Etc.; et al., Defendants, Jerry Connell, Bexar County Constable, Precinct 2, Individually and in his official capacity, Defendant-Appellant.

No. 01-50117.

No. 01-51010.

United States Court of Appeals, Fifth Circuit.

July 31, 2002.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

James D. Guess, San Antonio, TX, for Hitt.

Leslie J.A. Sachanowicz, San Antonio, TX, Daniel C. Andrews, Jones, Kurth, Andrews & Ortiz, San Antonio, TX, for Connell.

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

Before JONES, EMILIO M. GARZA and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:

In this 42 U.S.C. § 1983 action, the jury found that Bexar County, Texas, Constable Jerry Connell fired deputy constable Harold Merritt Hitt in retaliation for Hitt's exercise of his First Amendment right to freedom of association. The jury awarded Hitt $300,000 in compensatory damages, three-fourths of which was for non-pecuniary harms like "mental and emotional distress". The district court subsequently awarded Hitt approximately $88,500 in attorney's fees and costs pursuant to 42 U.S.C. § 1988. Connell has appealed both the judgment and the award of attorney's fees.

We hold principally that the Bexar County Civil Service Commission's decision upholding Hitt's termination did not break the causal connection between the protected activity and the adverse employment action, and Connell was not entitled to qualified immunity. However, Hitt introduced insufficient evidence to support an award of nonpecuniary damages, so that a portion of his damages must be vacated and the attorney's fee award remanded for reconsideration.

I. BACKGROUND

Harold Merritt Hitt was employed as a deputy constable in precinct 2 of Bexar County from 1993 until March 1997, when he was fired by Constable Connell. Hitt alleged, and a jury found, that his employment was terminated because Connell disapproved of Hitt's involvement with two affiliated labor unions, the Alamo Area Peace Officers' Association and the Texas Conference of Police and Sheriffs ("TCOPS").

The dispute between Connell and Hitt began in October 1995 when Connell ordered his deputies to start reporting to the office 15 minutes before their shifts were scheduled to begin. Deputy Hitt, who was serving as the secretary of the local union, wrote to TCOPS for advice about getting paid for these extra 15 minutes. Connell learned of Hitt's letter and called a general meeting of his deputies, one of whom surreptitiously tape-recorded what was said. Connell reiterated that his deputies would not be paid for the 15 minutes before their shifts, but his main point was that salary grievances should not be aired outside the constable's office. Connell suggested that deputies who continued to complain to the union were in danger of losing their commissions.

Three deputies — Ray Mullins, Joe Algueseva, and Robert Whitney — testified at trial that Constable Connell spoke to each of them privately not long after this meeting and told them that he would not tolerate union activity in his office. Each deputy testified that Connell referred specifically to Hitt and said that he intended to fire Hitt because he was a "troublemaker." One of the deputies, Ray Mullins, served as president of the local union. Mullins tape-recorded a conversation in which Connell said several times that they would have a "running gun battle" if Mullins did not quit the union. Connell threatened to "play dirty" and said he would start by taking away Mullins's $500 monthly car allowance. During this recorded conversation, Connell observed in passing that he could fire Hitt with impunity.¹

Connell fired Hitt in March 1997. Connell testified that he harbored no ill will toward the deputies who were active in the union. Moreover, Connell insisted that Hitt would have lost his job regardless of his union activity because Hitt had made a "bomb threat" in a January 1997 telephone conversation with his immediate supervisor, Deputy Robert North.

The gist of the telephone conversation is not in dispute. Hitt was angry that North had assigned a first-year constable to patrol traffic in a certain neighborhood. In his account of the conversation, which was written approximately three weeks after the telephone conversation, Deputy North wrote:

Sgt. Hitt stated, was I trying to get him (Sgt. Hitt) in trouble or fired. Sgt. Hitt stated, he knew what was going on and that I (Sgt. North) was fixing to be in the war....

Sgt. Hitt stated, that when the bomb went off with Horn (Asst. Chief Horn) that it might get my (Sgt. North) legs also.

As Sgt. Hitt and myself (Sgt. North) are both Vietnam veterans, it could have meant that the bomb, when it went off would take out Asst. Chief Horn, and possibly my (Sgt. North) legs, as we both had seen in Vietnam.

This statement could have only meant to be taken figuratively. But I don't know this for sure. Sgt. Hitt's tone of voice was filled with a lot of anger.

Hitt concedes that Deputy North's account of the conversation is generally accurate. Hitt argues, however, that violent figures of speech were used regularly around the office (e.g., Connell's "running gun battle") and that "the war" and "the bomb" referred to an ongoing criminal investigation of the constable's department.

Sergeant Gerardo De Los Santos of the Texas Rangers testified at trial that he had been investigating the constable's office since Deputy Mullins had contacted him in December 1995. At the time of the telephone conversation between Hitt and North, Sergeant De Los Santos was completing his investigation and had decided that there was sufficient evidence of retaliation and discrimination to file a report with the Bexar County District Attorney's Office. (He interviewed and took statements from Hitt in January and February of 1997, and then filed his report in late February.)

Deputy North admitted at trial that he had never really believed that Hitt was making a legitimate bomb threat. Consequently, North waited three weeks before informing Constable Connell and Chief Deputy Chuck Horn of the conversation, and one reason why he submitted the report was that he had been ordered "to look for things to write Hitt up about." Then, after North submitted the memorandum quoted above, Chief Deputy Horn instructed North to revise his memo and omit any suggestion that Hitt's reference to a "bomb" should be taken figuratively.

In February 1997, Constable Connell delivered a proposed notice of termination to Hitt. Citing the telephone conversation between Hitt and North, Connell wrote that such "unprofessionalism ... cannot and will not be tolerated." On March 5, Connell informed Hitt that his employment was terminated. Hitt appealed his dismissal to the Bexar County Civil Service Commission, but the commissioners who heard the appeal voted to uphold Constable Connell's decision.

Hitt filed this 42 U.S.C. § 1983 action in February 1999. Before trial, the district court dismissed all claims except for Hitt's free speech and free association claims against Connell in his individual capacity. Then, at the close of evidence, the district court granted judgment as a matter of law for Connell on the free speech claim. The jury returned a verdict for Hitt on the First Amendment association claim and awarded him $300,000 in compensatory damages.

The district court entered judgment for Hitt and, pursuant to 42 U.S.C. § 1988, awarded Hitt $88,487.94 in attorney's fees and expenses. Connell's appeals of both awards have been consolidated.

II. DISCUSSION

The First Amendment protects a public employee's right to associate with a union. As this court has stated,

This right of association encompasses the right of public employees to join unions and the right of their unions to engage in advocacy and to petition government in their behalf. Thus, the first amendment is violated by state action whose purpose is either to intimidate public employees from joining a union or from taking an active part in its affairs or to retaliate against those who do.

Boddie v. City of Columbus, Miss., 989 F.2d 745, 749 (5th Cir.1993), quoting Professional Ass'n of College Educators v. El Paso County Community College Dist., 730 F.2d 258, 262 (5th Cir.1984) (citations omitted).

To prevail on his First Amendment retaliation claim, Hitt had to show that (1) he suffered an adverse employment action, (2) his interest in "associating" outweighed the constable's interest in efficiency, and (3) his protected activity was a substantial or motivating factor in the adverse employment action. Breaux v. City of Garland, 205 F.3d 150, 156, 157 n. 12 (5th Cir.2000); Boddie, 989 F.2d at 747. Connell's principal arguments on the merits focus on the third element of causation. He contends that Hitt's participation in union activity was not a motivating factor in his discharge because the county civil service commissioners (who had no retaliatory animus) actually made the decision or, alternatively, Connell fired Hitt because of the bomb threat. The jury concluded, however, that Constable Connell made the decision to fire Hitt and that he did so in retaliation for Hitt's protected activity. Their verdict may be overturned only if, "after viewing the trial record in the light most favorable to the verdict, there is no legally sufficient evidentiary basis for a reasonable jury to have found for the prevailing party." Mato v. Baldauf, 267 F.3d 444, 450-51 (5th Cir.2001) (quotations and citations omitted).

A. Statute of Limitations

Connell's contention that this suit was time-barred is easily rejected. While Texas's two-year statute of...