Petrie v. City of Grapevine

• Decision Date: 21 October 2012
• Docket Number: No. 3–11–CV–0715–M.,3–11–CV–0715–M.
• Citation: 904 F.Supp.2d 569
• Parties: Matthew PETRIE, Plaintiff, v. CITY OF GRAPEVINE, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

904 F.Supp.2d 569

Matthew PETRIE, Plaintiff,

v.CITY OF GRAPEVINE, et al., Defendants.

No. 3–11–CV–0715–M.

United States District Court,

N.D. Texas,

Dallas Division.

Oct. 21, 2012.

David L. Wiley, Amy E. Gibson, Gibson Wiley PLLC, Dallas, TX, for Plaintiff.

Brett Daniel Gardner, William W. Krueger, III, McKamie Krueger LLP, Richardson, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

BARBARA M.G. LYNN, District Judge.

Before the Court are the Rule 12(b)(6) Motion To Dismiss, or in the Alternative, Traditional/No Evidence Rule 56 Motion for Summary Judgment filed by Defendants City of Grapevine (the “City”) and Edward Salame, the City's Chief of Police, and the Motion for Partial Summary Judgment filed by Plaintiff Matthew Petrie. For the reasons stated below, both motions are granted in part and denied in part.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff began working as a patrol officer for the City of Grapevine Police Department (the “GPD”) in 1988. ( See Plf. Resp. App. at 2, ¶ 4). During his sixth year on the force, Plaintiff started teaching the Drug Abuse Resistance Education (“DARE”) program at Grapevine Middle School (“GMS”), part of the Grapevine–Colleyville Independent School District (“GCISD”). ( See id. at 3, ¶¶ 5 & 8; Def. MSJ App. at 89). Through the DARE program, law enforcement personnel educate children on life skills like drug, gang, and violence avoidance. ( See Plf. Resp. App. at 3, ¶ 8).

In 1996, the GPD installed plaintiff as the full-time School Resource Officer (“SRO”) at GMS. ( See id. at 3, ¶ 5; Def. MSJ App. at 47, ¶¶ 2–3). In that capacity, Plaintiff continued to teach the DARE program and also provided law enforcement at GMS. ( See Plf. Resp. App. at 3, ¶¶ 5–6; Def. MSJ App. at 96–98). In approximately 2002, Plaintiff began serving as treasurer of the Texas DARE Officers Association (“TDOA”), an independent non-profit organization that provides support for DARE programs at the local, state, and national levels. ( See Plf. Resp. App. at 11–13; Def. MSJ App. at 102–03).

Towards the end of the 2008–09 school year, Plaintiff learned that GCISD was considering eliminating its DARE program in favor of a counselor-led “Life Skills” program. ( See Plf. Resp. App. at 5, ¶ 14; Def. MSJ App. at 115–17, 129). Sometime in the first half of 2009, while on SRO duty, Plaintiff shared his concerns about the end of the DARE program with his supervisor, Sergeant Kim Smith, and GMS Principal Tom Hughes. ( See Plf. Resp. App. at 6, ¶ 19; Def. MSJ App. at 120–21, 136, 142, 149–51, 153). In about May or 2009, after work, Plaintiff met with Tommy Ingram, then-Chief of Police for the City of Colleyville, in Ingram's office. ( See Plf. Resp. App. at 5, ¶ 15; Def. MSJ App. at 36, ¶ 1; 166). Plaintiff told Ingram he was not representing the GPD, but instead was there as a representative of the TDOA. ( See Plf. Resp. App. at 5, ¶ 15; Def. MSJ App. at 37, ¶ 5; 159–60). According to Plaintiff, he then:

discussed retaining the DARE program, working to improve the DARE program rather than dropping the DARE program from the GCISD curriculum, and funding for the DARE program at GCISD.

(Plf. Resp. App. at 5, ¶ 15). Plaintiff may also “have informed Chief Ingram that [he] was also concerned as a parent about the possible loss of the DARE program[.]” ( See id.).¹ Plaintiff did not discuss with Ingram his SRO job duties nor did he talk to Ingram about possibly losing his position. ( See Plf. Resp. App. at 5, ¶ 5; Def. MSJ App. at 154).

In early May, Plaintiff called Salame and asked to meet with him about the decision having been made to discontinue the DARE program. ( See Plf. Resp. App. at 5, ¶ 16; Def. MSJ App. at 123). At the ensuing meeting with Salame, at which GPD Assistant Chief Ben Flanagan and GPD Lieutenant Barry Bowling were also present, Plaintiff expressed his concerns about discontinuing DARE. ( See Plf. Resp. App. at 6, ¶ 18; Def. MSJ App. at 48, ¶ 6). Salame asked Plaintiff whether he had met with anyone else about the DARE program. (See Plf. Resp. App. at 6, ¶ 18). Plaintiff admitted to meeting with Ingram, after hours, as a TDOA representative. ( See id.). Salame informed Plaintiff that in doing so he had gone outside the chain of command, warned that further objections to third parties would be outside the chain of command, and ordered him to limit any expression of such concerns to his immediate supervisor. ( See Def. MSJ App. at 48–49, ¶ 7).

Within one or two months of his meeting with Salame, Plaintiff learned that he had been transferred to patrol duties, also known as “Uniform Operations.” ( See Plf. Resp. App. at 6, ¶ 19; Def. MSJ App. at 29). Salame formally announced the transfer. On June 29, 2009, Salame issued a memo which stated the transfer would become effective July 5, 2009. ( See Plf. Resp. App. at 7, ¶ 22; Def. MSJ App. at 29). Unlike the SRO position, the patrol job required Plaintiff to spend long periods of time in a squad car. ( See Plf. Resp. App. at 8, ¶ 27). After allegedly experiencing back problems due to prolonged periods of sitting in the car, Plaintiff ultimately retired from GPD effective April 28, 2011. ( See id. at 7–9, ¶¶ 23 & 27; Def. MSJ App. at 226).

On April 7, 2011, Plaintiff filed suit, asserting that Defendants retaliated against him for exercising his First Amendment right of free speech, in violation of 42 U.S.C. § 1983. ( See Plf. Compl. at 10–13, ¶¶ 52–66). Defendants move for summary judgment on the merits, and Salame also asserts a qualified immunity defense.² Plaintiff, in turn, moves for partial summary judgment on certain affirmative defenses of Defendants.

II. LEGAL STANDARD

Summary judgment is proper when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). If a reasonable jury could return a verdict for the non-moving party, then there is a genuine dispute of material fact. Gates v. Tex. Dep't of Protective & Regulatory Servs., 537 F.3d 404, 417 (5th Cir.2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). The moving party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine dispute of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Lynch Props., Inc. v. Potomac Ins. Co., 140 F.3d 622, 625 (5th Cir.1998). Once the movant carries its initial burden, the burden shifts to the nonmovant to show that summary judgment is inappropriate, by designating specific facts beyond the pleadings that prove the existence of a genuine dispute of material fact. SeeFed.R.Civ.P. 56(a); Anderson, 477 U.S. at 250, 106 S.Ct. 2505;Fields v. City of S. Houston, Tex., 922 F.2d 1183, 1187 (5th Cir.1991). In determining whether a genuine dispute of material fact exists, “factual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists.” Lynch Props., 140 F.3d at 625 (citation omitted).

III. ANALYSIS REGARDING DEFENDANTS' MOTION

The gravamen of Plaintiff's claims is that Defendants wrongfully transferred him from an SRO position to a patrol duty position because he spoke to Chief Ingram in favor of the DARE program. ( See, generally, Plf. Resp. App. at 5–10, ¶¶ 17–51; see also Def. MSJ App. at 200). In their Motion, Defendants assert that Plaintiff cannot prove his free speech retaliation claim, cannot establish the liability of either Defendant for free speech retaliation under section 1983, and cannot overcome Salame's defense of qualified immunity. ( See Def. MSJ Br. at 7–22, ¶¶ 15–58). The Court will address each of these arguments in turn.

A. Plaintiff's Free Speech Retaliation Claim

A government employer “cannot condition public employment on a basis that infringes the employee's constitutionally protected interest in freedom of expression.” Connick v. Myers, 461 U.S. 138, 142, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). To prevail on a free speech retaliation claim, a public employee must establish: (1) he was not speaking pursuant to his official job duties; (2) he was speaking as a citizen on a matter of public concern; (3) his interest in speaking outweighed his employer's interest in promoting workplace efficiency; (4) he suffered an adverse employment action; and (5) the adverse action was substantially motivated by the protected speech. See Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184–86 (5th Cir.2005); Davis v. McKinney, 518 F.3d 304, 312 (5th Cir.2008) (discussing Garcetti v. Ceballos, 547 U.S. 410, 126 S.Ct. 1951, 164 L.Ed.2d 689 (2006)). ³ While the first three of these elements present questions of law for the Court to decide, the latter two are factual disputes typically decided by a jury. Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689, 692–94 (5th Cir.2007); Dutta v. Pistenmaa, No. 3–01–CV–2053–M, 2002 WL 32332550 at *5 (N.D.Tex. Nov. 8, 2002) (citing cases). Defendants attack Plaintiff's ability to prove any of the five elements. ( See Def. MSJ Br. at 7–17, ¶¶ 15–43).

1. Whether Speech Made Pursuant to Plaintiff's Official Job Duties

Defendants first ask the Court to determine, as a matter of law, that Plaintiffwas speaking pursuant to his official job duties during his meeting with Chief Ingram. ( See Def. MSJ Br. at 10, ¶ 24 (citing Davis, 518 F.3d at 312)). If made “pursuant to official duties,” speech is not constitutionally protected, no matter how great its social significance. Williams, 480 F.3d at 692–93;see also Garcetti, 547 U.S. at 421, 126 S.Ct. 1951 (“[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”). The Fifth Circuit has defined “pursuant to official duties” as “activities...