Van Ooteghem v. Gray, 78-3711

• Decision Date: 24 August 1981
• Docket Number: No. 78-3711,78-3711
• Citation: 654 F.2d 304
• Parties: Gary John VAN OOTEGHEM, Plaintiff-Appellee Cross Appellant, v. Hartsell GRAY, Individually and in his capacity as Treasurer of Harris County, Texas (Henry E. Kriegel, successor in office), Defendant-Appellant Cross Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 304

654 F.2d 304

Gary John VAN OOTEGHEM, Plaintiff-Appellee Cross Appellant, v. Hartsell GRAY, Individually and in his capacity as Treasurer of Harris County, Texas (Henry E. Kriegel successor in office) Defendant-Appellant Cross Appellee.

No. 78-3711.

United States Court of Appeals Fifth Circuit.

August 24, 1981.

Joe Resweber, Billy E. Lee, Houston, Tex., for Hartsell Gray.

David Crump, Houston, Tex., for amicus Counties of Smith, Tarrant, et al.

J. Patrick Wiseman, Hormachea & Sauer, Larry W. Sauer, Jr., Houston, Tex., for Gary John Van Ooteghem.

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

Before GODBOLD, Chief Judge, BROWN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A CLARK, and WILLIAMS, Circuit Judges.

PER CURIAM:

The court took this case en banc to resolve the question which divided the panel: must government regulation of constitutionally protected speech of public employees be justified by a compelling state interest? 628 F.2d 488 (5th Cir. 1980). The court en banc determines that the issue is not presented by the facts in this case. We affirm that portion of the judgment of the district court holding Van Ooteghem's constitutional right of freedom of speech was violated without reaching or expressing any view on the question which brought us en banc.

Under Fifth Circuit Local Rule 17, our decision to rehear the case en banc, 640 F.2d 12, vacated the panel opinion; however, the following statement of the stipulated facts is largely adopted from the panel's opinion. In January 1975, plaintiff John Van Ooteghem was hired by defendant Hartsell Gray, the Treasurer of Harris County, Texas, to serve first as Cashier Assistant County Treasurer, and later as Assistant County Treasurer. He was a nontenured employee. Van Ooteghem performed his job in a professional manner: he was recognized to be both hard-working and quite brilliant. Accordingly, Treasurer Gray treated the plaintiff with the respect due to a professional: Van Ooteghem was allowed to set his own hours and to take time off as needed.

On July 28, 1975, Van Ooteghem informed Gray that he was a homosexual and, shortly thereafter, related his plans to address the Commissioners Court on the subject of the civil rights of homosexuals. On July 31, 1975, Gray forwarded a letter to Van Ooteghem which purported to restrict the latter to his office between the hours of eight a. m. and twelve noon and from one p. m. until five p. m., Monday through Friday. These hours corresponded to the times during which citizens were allowed to address the Commissioners Court. The letter stated that its restrictions were intended to prevent Van Ooteghem from carrying on "political activities" during these hours. Van Ooteghem refused to sign an acknowledgement provided on the letter and his employment was terminated at the end of that day.

In response, Van Ooteghem filed suit, pursuant to 42 U.S.C. § 1983, alleging that he was dismissed as Assistant County Treasurer in violation of his constitutional right of free speech.

Van Ooteghem alleged that Gray terminated his employment because of Van Ooteghem's homosexuality and desire to speak publicly on the issue of homosexuality. Gray alleged that he lost confidence in Van Ooteghem's abilities to perform his duties as assistant treasurer for Harris County. Gray alleged that this loss of confidence was based upon Van Ooteghem's assertion that he was going to appear publicly and speak out on political issues during office hours.

The district court found that Van Ooteghem's wish to speak to the Commissioners Court was a substantial factor in his dismissal. That finding is not clearly erroneous. Indeed, it is compelled by the stipulated facts. Since Van Ooteghem was a nontenured employee, he was subject to discharge for any good reason, or even for no reason at all, but not for a constitutionally impermissible reason. Gray assigns as his reason for discharge loss of confidence in Van Ooteghem. However, he further asserts this lost confidence resulted solely from Van Ooteghem's declared intention to speak before the Commissioners Court during hours Gray had proscribed a proscription imposed solely to prevent such speech. Thus, the wish to exercise his first amendment right caused Van Ooteghem's dismissal.

The district court further concluded that Van Ooteghem's intent to exercise his right to speak was constitutionally protected. We agree. The controlling case is Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). It provides:

The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees.

As the district court properly found, Van Ooteghem's proposed speech neither would have significantly...