Turner v. Perry

• Decision Date: 27 January 2009
• Docket Number: No. 14-07-01060-CV.,14-07-01060-CV.
• Citation: 278 S.W.3d 806
• Parties: Dan TURNER and Henry Bonaparte, Appellants, v. Troy PERRY, Appellee.
• Court: Texas Court of Appeals

278 S.W.3d 806

Dan TURNER and Henry Bonaparte, Appellants, v. Troy PERRY, Appellee.

No. 14-07-01060-CV.

Court of Appeals of Texas, Houston (14th Dist.).

January 27, 2009.

Rehearing Overruled February 26, 2009.

Jon Erik Nichols, Kristi Michelle Huer Herring, Jonathan Griffin Brush, Houston, for appellants.

James L. Reed, Michael Antoine Ackal, III, Houston, for appellee.

Panel consists of Chief Justice HEDGES and Justices GUZMAN and BROWN.

OPINION

EVA M. GUZMAN, Justice.

In this accelerated interlocutory appeal, police officers Dan Turner and Henry Bonaparte challenge the trial court's denial of their assertions of qualified and official immunity. Appellee Troy Perry sued appellants, his former supervisors, alleging that they took adverse employment actions against him and slandered him in retaliation for his official complaint accusing them of unlawful conduct. Appellants contend that (a) they acted in response to unprotected speech, (b) their employer's grievance process provided Perry with adequate due process, and (c) their representations of Perry's conduct were made in good faith. We reverse the trial court's denial of summary judgment based on qualified immunity to one of Perry's First Amendment claims, affirm the trial court's ruling in all other respects, and remand for further proceedings.

I. FACTUAL AND PROCEDURAL BACKGROUND

Alief Independent School District ("AISD") employed appellee Troy Perry as a "Peace Officer-Gang Enforcement Officer" in 2004. Sergeant Henry Bonaparte was Perry's direct supervisor, and Captain Dan Turner was the captain of the AISD police department. As a police officer responsible for investigating gang-related activity, Perry interviewed students and obtained and evaluated documents containing gang-related information. According to Plaintiff's Seventh Amended Petition, Perry completed an application in July 2004 to submit AISD's "gang database" to the Department of Public Safety ("DPS"); however, Turner did not sign the application, and the appellants did not allow Perry to release the information to DPS.

In April 2005, information Perry had learned through his work as a gang officer caused him concern that there would be an increased risk of gang-related violence at several AISD schools on May 5 and May 16, 2005. He communicated the information he had gathered to gang investigators of several police agencies and the office of the Texas Attorney General. On April 21 and 22, 2005, he emailed the information to Turner, Bonaparte, and other law enforcement agencies and personnel. According to Perry, DPS employee Vicki Norris contacted him and asked if he would allow her to post this information to a website on his behalf. The website, referred to in the record as "CLEO," is a password-protected site accessible to criminal-justice personnel. To obtain access, an officer must complete a written application, which must also be signed by the officer's supervisor. Perry had completed an application, but because appellants refused to sign it, he could not access CLEO directly. Perry therefore authorized Norris to post the information for him.

After the information was published on the CLEO website, Bonaparte emailed Perry that "the [AISD] superintendent's office had been inundated with calls for information in reference to the warning you had posted on the CLEO web site." On May 4, 2005, Bonaparte again emailed Perry, stating, "From this point on no information[] regarding activities in and around this district will be given out without prior written approval from [a] departmental supervisor. Your decision to export data is causing a number of problems; this directive includes both written and verbal communications." In addition, Perry was demoted from his position as a gang officer to a position as a patrol officer and placed on a "growth plan" on July 15, 2005. According to Perry, both Turner and Bonaparte informed him that these disciplinary measures were, in part, a response to the CLEO posting. Perry filed a grievance concerning that action, and in an undated memorandum, Bonaparte summarized the discussion that occurred during Perry's grievance hearing on September 13, 2005. According to Bonaparte, Perry contended that he was reassigned from his position as a gang officer to a position as a patrol officer as a "direct result of his disclosure of a gang[-]related issue via a national web site." Bonaparte further stated that "Perry did not perform in a satisfactory fashion during his tenure as a gang officer and he will not be returned to the position." He concluded that "Perry has had problems with following the chain of command and has disseminated information to other outlets without supervisory approval."

While these events were unfolding, Perry allegedly learned that Bonaparte and Turner had entered Perry's office while he was away and removed a traffic citation he had written concerning an AISD teacher. According to Perry, Bonaparte told him that the citation was removed because the teacher was "politically connected." On July 20, 2005, Perry asked the advice of an acquaintance at the Harris Count District Attorney's Police Integrity Unit, and he was told that he should collect evidence of the alleged misconduct. Perry then obtained still photographs from a surveillance tape that reportedly shows Bonaparte and Turner entering Perry's office and leaving with a piece of paper. On or about October 18, 2005, Perry lodged an official complaint with an assistant district attorney in which he alleged that Bonaparte and Turner had unlawfully tampered with a government record. According to Perry, an assistant district attorney told him that the cited teacher said Turner had assured her that he would "take care of" the citation.

On October 27, 2005, Perry filed a complaint with the school district in which he alleged that appellants had retaliated against him for reporting their conduct to the district attorney's office. In connection with this grievance, Perry also related that he arrested a female student at Elsik High School on September 21, 2005, and at Turner's instruction, transported the student to the AISD police station for processing. At the station, Perry telephoned an assistant district attorney who accepted Perry's charge that the student resisted arrest. Perry also intended to arrest the student for "Disorderly Conduct—Abusive Language," but he was notified by the police dispatcher that Turner had ordered him to leave the student in the custody of Officer Wayne Cox and return to Elsik High School. While he was away, Cox issued the student a citation for "Disruption of Class" and released her. In a subsequent letter to Bonaparte, Perry stated that he advised the assistant district attorney that Cox had erroneously released the student, and the attorney advised Perry to complete the charges and process the arrest at a later date. Perry also complained about the release to Turner, who allegedly responded that he, Turner, had been "ordered to issue all students who were arrested at Elsik citations and release them." Perry asserts that he completed an offense report on the day of these events regarding the charges against the student, and appellants expressed no objection to the report at that time.

The charges against the Elsik High School student were entered into the Juvenile Offender Tracking system on September 29, 2005,¹ and Perry attempted unsuccessfully to apprehend the student on the same day. When he returned to the station, he was given a letter of reprimand, dated September 28, 2005, in which Turner stated that Perry violated AISD's procedural requirement that all officers notify an AISD police supervisor of an alleged criminal offense before contacting the Harris County District Attorney's office to institute charges. The letter continued, "You are notified by receipt of this memorandum that you are required to contact an AISD Police Supervisor prior to contacting any ADA for charges." Perry concluded that the reprimand, "arbitrarily enforcing an unwritten practice," was issued to retaliate against him for reporting Bonaparte and Turner to the Harris County District Attorney's office for illegal conduct.

Perry filed further grievances on October 11, November 2, and November 11, 2005. After he filed the November 11th grievance, AISD's Director of Human Relations, Rose Benitez, summoned Perry to her office. In a meeting between Benitez, Perry, and Bonaparte, AISD terminated Perry's employment. On November 17, 2005, Benitez wrote to Perry and stated that, at her November 11th meeting with him, they discussed issues concerning Perry's job performance, including his "[i]nappropriate interaction with students." Benitez further stated that a copy of the letter would be placed in Perry's personnel file.²

On January 12, 2006, Perry sued Turner, Bonaparte, and AISD. He alleged that AISD terminated his employment in retaliation against him for reporting violations of law by Turner and Bonaparte. He asserted claims against Turner and Bonaparte in their individual capacities for slander and intentional infliction of emotional distress. In addition, he alleged that they took adverse employment actions against him in violation of his rights under the First and Fourteenth Amendments.

Turner and Bonaparte moved for partial traditional summary judgment on the grounds that they are protected from suit by qualified immunity and official immunity, and Perry failed to exhaust administrative remedies. The trial court denied the motion on November 26, 2007, and this accelerated interlocutory appeal timely ensued.

II. ISSUES PRESENTED

In their first issue, Turner and Bonaparte contend the trial court erred in denying their summary-judgment motion asserting qualified immunity to Perry's claims that they violated his constitutional rights to freedom of speech and due process. In their second issue, appellants contest the trial court's failure to grant summary...