Teague v. City of Flower Mound, Tex.

• Decision Date: 06 July 1999
• Docket Number: No. 98-40230,98-40230
• Citation: 179 F.3d 377
• Parties: Tom TEAGUE and David Burkett, Plaintiffs-Appellants, v. The CITY OF FLOWER MOUND, TEXAS; Dave Brungardt; Wess Jones; Parker-Jones, Inc.; Terry Welch; Bill Parker; and Bobby Jones, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 377

179 F.3d 377

Tom TEAGUE and David Burkett, Plaintiffs-Appellants, v. The CITY OF FLOWER MOUND, TEXAS; Dave Brungardt; Wess Jones Parker-Jones, Inc.; Terry Welch; Bill Parker; and Bobby Jones, Defendants-Appellees.

No. 98-40230.

United States Court of Appeals Fifth Circuit.

July 6, 1999.

Russell Howard Daniels, Dallas, TX, for Plaintiffs-Appellants.

Edwin Armstrong Price Voss, Jr., Joe C. Tooley, Law Office of Joe C. Tooley, Terrence S. Welch, Dallas, TX, for Defendants-Appellees.

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

Before SMITH, DeMOSS and STEWART, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Plaintiffs Tom Teague and David Burkett appeal a summary judgment entered in their retaliation case, asserting that they were reprimanded and ultimately discharged for exercising their First Amendment right to free speech. Concluding that the speech in question does not primarily address a matter of public concern, we affirm.

I.

Teague and Burkett were long-time police officers employed by the Flower Mound Police Department who had exemplary performance records and had been recognized as "Officers of the Year." Teague was the department's designated internal affairs officer, and Teague and Burkett served in a supervisory capacity in the Criminal Investigation Division ("CID").

In December 1995, they became aware of possible wrongdoing by fellow officer Wess Jones; specifically, they suspected him of aggravated perjury. Pursuant to his internal affairs role, Teague placed Jones on administrative leave and, beginning December 10, 1995, undertook an investigation. Because of the criminal nature of Jones's suspected wrongdoing, Burkett began a parallel criminal investigation into Jones's conduct.

When Chief of Police Dave Brungardt learned of the investigations, he requested that Teague and Burkett keep him apprised of their progress. On December 20, after learning from the Town Attorney that Burkett was going to present a case against Jones to a grand jury, Brungardt put a stop to the investigations but hired the outside private investigating firm Parker-Jones, Inc. ("Parker-Jones"), to look into Jones's potential wrongdoing. Parker-Jones cleared Jones of all wrongdoing, after which Jones was returned to regular duty.

Upset with Jones's vindication, in light of what they felt was (as stated in Teague's affidavit) "substantive and uncontroverted evidence that there was probable cause to believe that Wess Jones had violated several sections of the Texas Penal Code, and internal Flower Mound personnel rules," Teague, Burkett, and other officers requested a meeting with Brungardt. Brungardt refused, explaining that the district attorney's office had investigated the matter and had also cleared Jones of any wrongdoing. On hearing this, Teague called assistant district attorney Kevin Henry, who informed him that the district attorney had not looked into the Jones matter at all. This led Teague and Burkett to believe that Brungardt was covering up for Jones--a suspicion bolstered by the fact that Brungardt had developed a close relationship with Jones since Jones had become president of the police union.

Pursuant to city rules, Teague, Burkett and another supervisor filed a grievance against Brungardt, which was presented to him on January 27, 1996. These officers also requested that Brungardt permit them to meet with Town Manager Ron Ragland regarding these issues. Permission was initially granted, but withdrawn only three days later.

In the meantime, on January 15 Brungardt transferred Teague and Burkett out of CID, at their request. Burkett's replacement--Ron Nottingham--informed Brungardt that the CID had an enormous backlog of cases in the wake of Teague's and Burkett's supervisory tenure. This prompted Brungardt to launch an investigation into Brungardt and Teague, which was commenced by Parker-Jones on January 31, on which date Brungardt gave Teague and Burkett administrative warnings and placed them on administrative leave. Additionally, every other officer who had signed the January 27 grievance petition was in some way reprimanded on either January 30 or 31.

In May 1996, the Parker-Jones investigation into Teague's and Burkett's supervision of the CID concluded that they had been derelict in their duty. In June 1996, Brungardt fired them, whereupon they appealed their terminations to Ragland, who sustained Brungardt's decision on July 22, 1996.

II.

Teague and Burkett sued the city, Brungardt, and Parker-Jones and its principals, claiming a trio of constitutional violations: retaliation in violation of the First Amendment; denial of their right to assemble and to petition the government under the First Amendment; and denial of due process under the Fifth Amendment. Defendants denied any constitutional violations and invoked qualified immunity.

The court granted summary judgment for defendants on all claims, finding an absence of any constitutional deprivation. Teague and Burkett appeal only on the retaliation claim, thereby abandoning their other constitutional claims. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.1993).

Regarding retaliation, the court found that Teague's and Burkett's speech was not a matter of public concern and therefore did not qualify for First Amendment protection. A fortiori, Brungardt was afforded qualified immunity, and the city was held not liable.

III.

There are four elements to an employee's First Amendment retaliation claim against his employer:

First, the Plaintiffs must suffer an adverse employment decision. See Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.1997). Second, the Plaintiffs' speech must involve a matter of public concern. See Thompson v. City of Starkville, 901 F.2d 456, 460 (5th Cir.1990) (citing Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 ... (1983)). Third, the Plaintiffs' interest in commenting on matters of public concern must outweigh the Defendants' interest in promoting efficiency. Id.(citing Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 ... (1968)). Fourth, the Plaintiffs' speech must have motivated the Defendants' action. Id.(citing Mt. Healthy City School Dist. v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 50 L.Ed.2d 471 ... (1977)).

Harris v. Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir.1999). The focal point of the instant dispute is whether the second of these elements has been established: whether plaintiffs Teague and Burkett have alleged facts sufficient to show that their speech addressed a matter of public concern. See Connick v. Myers, 461 U.S. 138, 147, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). This determination is a question of law, see Coughlin v. Lee, 946 F.2d 1152, 1156 (5th Cir.1991), so we decide it de novo. Id.

Building on the seminal employee speech case of Pickering v. Board of Educ., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968), the Connick Court explained that "[w]hether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole court record." Connick, 461 U.S. at 147-48, 103 S.Ct. 1684. In language particularly relevant here, Connick elaborated on its general rule:

We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.

Id. at 147, 103 S.Ct. 1684.

Since Connick was decided in 1983, our circuit and others have grappled with defining the contours of its test and its holding, as we applied it to a variety of settings. ¹ The instant case involves speech that is of both public and private concern. We know that it involves a matter of public concern, because our circuit's caselaw has established that speech regarding police misconduct constitutes a matter of public concern. ² We recognize, however, that the speech involves a matter of private concern as well, as in the past we have held that speech concerning the conditions of one's employment is a private matter. See Gillum v. City of Kerrville, 3 F.3d 117, 120-21 (5th Cir.1993). Thus, we are faced with the challenge of applying Connick to a "mixed speech" situation.

Our first foray into the realm of mixed speech cases in the wake of Connick was Terrell v. University of Tex. Sys. Police, 792 F.2d 1360 (5th Cir.1986), in which we concluded that our obligation in mixed speech cases is "to decide whether the speech at issue ... was made primarily in the plaintiff's role as citizen or primarily in his role as employee." Terrell, id. at 1362 (emphasis added). Unfortunately, the facts of Terrell are a bit peculiar, so its holding is not squarely on point: It concerned the plight of a public employee who "was fired when his secret diary, which was critical of his supervisor, fell into the supervisor's hands." Id. at 1361. Because of these unique circumstances, we were able to find that the plaintiff "made no effort to communicate the contents of [his diary] to the public, and the evidence does not suggest that he would have had any occasion to do so." Id. at 1362-63. This finding belied plaintiff's assertion that his was a matter of public concern, and enabled us to hold that his was a matter of "wholly intragovernmental concern." Id. at 1363.

Three years later, we revisited the issue of mixed speech in Moore v. City of Kilgore, 877 F.2d 364 (5th Cir.1989), in which we reiterated that whether speech should be characterized as a matter of public concern depends on its "content, context and form." Moore, 877 F.2d at 369-70. These factors "must be considered as a whole package, and [their] significance ... will differ depending on...