Wallace v. County of Comal

• Decision Date: 14 February 2005
• Docket Number: No. 04-50280.,04-50280.
• Citation: 400 F.3d 284
• Parties: Monica M. WALLACE; Patricia Kniss, Plaintiffs-Appellees, v. COUNTY OF COMAL, State of Texas; et al., Defendants, Danny Scheel, in his individual capacity; Moe Schwab, in his individual capacity; Tom Hornseth, in his individual capacity, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 284

400 F.3d 284

Monica M. WALLACE; Patricia Kniss, Plaintiffs-Appellees, v. COUNTY OF COMAL, State of Texas; et al., Defendants Danny Scheel, in his individual capacity; Moe Schwab, in his individual capacity; Tom Hornseth, in his individual capacity, Defendants-Appellants.

No. 04-50280.

United States Court of Appeals, Fifth Circuit.

February 14, 2005.

COPYRIGHT MATERIAL OMITTED

Barry H. Beer, San Antonio, TX, Thomas Joseph Crane (argued), Advocacy Inc., San Antonio, TX, for Plaintiffs-Appellees.

Michael A. Shaunessy (argued), Deborah Herzberg Loomis, Shaunessy Burnett & Greenberg, Austin, TX, for Defendants-Appellants.

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

Before GARZA, STEWART and CLEMENT, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Monica Wallace and Patricia Kniss filed suit against the County of Comal, Texas, its County Engineer Tom Hornseth, County Judge Danny Scheel, and Commissioner Moe Schwab, in their individual capacities for violating their First Amendment rights under 42 U.S.C. § 1983. Hornseth, Scheel and Schwab now bring this interlocutory appeal of the district court's denial of their motion for summary judgment on the basis of qualified immunity. The defendants also request that we reverse the district court's order granting plaintiffs' motion to amend their complaint to include individual defendants previously dismissed in this case.

I

In reviewing a denial of summary judgment on the basis of qualified immunity, we are obligated to "take, as given, the [following] facts that the district court assumed when it denied summary judgment." Nerren v. Livingston Police Dep't, 86 F.3d 469, 472 (5th Cir.1996) (quoting Johnson v. Jones, 515 U.S. 304, 319, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995)).

Wallace and Kniss were employed by the Comal County Environmental Health Department ("Department") as health inspectors for sixteen and seven years respectively. They were responsible for ensuring that septic systems were properly installed and in compliance with the standards established by the Texas Natural Resources Conservation Commission ("TNRCC"). During their employment, Kniss always received at least an "Acceptable" job evaluation and Wallace frequently received merit raises based on her "Commendable" performance rating.

During this period, county commissioners also received numerous complaints from installers, designers and home builders about the plaintiffs. Specifically, they claimed the inspectors were creating severe financial burdens by being "too strict" in enforcing the standards set out by the TNRCC. The builders argued that Kniss and Wallace's "hard-nosed" approach would result in their going out of business.

In 1996, Wallace, who at the time was the head of the Department, was demoted to Field Operations Manager. The Department was consolidated with the Office of the County Engineer and placed under the leadership of Hornseth. According to the defendants, the consolidation was necessary to ensure greater efficiency and enhance public service.

One year later, Hornseth suspended Wallace's managerial responsibilities. Human Resources Chief, Tom Collette, warned the commissioners against demoting Wallace without written support. Nevertheless, the suspension soon became a permanent demotion and Wallace was made a health inspector. She was replaced by her receptionist Barbara Ritzen who had no field experience or training as a health inspector. Hornseth gave no notice to Wallace and informed her that her demotion was due to her failure to cooperate. Wallace, who received a pay cut, appealed the demotion to the commissioners who denied the appeal in a unanimous vote.

After the demotion, Wallace and Kniss continued to perform their duties as inspectors and spoke regularly with Hornseth about various TNRCC rule violations. Their concerns were frequently rebuffed by Hornseth who often responded with anger and hostility. They were told not to speak to outside officials and to keep their problems "in-house." Subsequently, Wallace sent a fax to the TNRCC stating that she was being improperly overruled on violations of the TNRCC standards.

Subsequently, county commissioners held a meeting with Collette in Scheel's office. Collette presented a draft document titled "HR View" which outlined how Wallace's situation would be viewed by individuals outside the Department. Specifically, the document noted that Wallace "adheres to the rules laid down by the TNRCC regarding septic tank installation. By doing so, she has incur[red] the wrath of shoddy installers and some homeowners who like to take shortcuts. This prompts calls to the Commissioner's Court. Since the callers are `constituents,' some members of the Commissioner's Court would like to see Monica [Wallace] relax a little bit on rigid rule enforcement."

Soon after, Hornseth made a tentative decision to fire Wallace and Kniss. After discussing his decision with the commissioners, Hornseth terminated Wallace and Kniss from their positions. While no specific warning had been given to the plaintiffs, Hornseth had told Wallace on numerous occasions that Scheel wanted her terminated. Collette, who had informed Scheel that he would support Wallace in any subsequent litigation, was suspended that same day and later terminated.

II

Plaintiffs filed suit against Hornseth, Scheel, Schwab, County Commissioners Jack Dawson, Jay Milikin, and Christina Zamora, all in their official and individual capacities, and against the County of Comal. The district court judge granted, in part, defendants' first motion for summary judgment and dismissed all claims against the County Judge and commissioners. The district court held that the defendants were entitled to qualified immunity because there was no "evidence that the [defendants] took adverse employment actions against the Plaintiffs." The district court, however, allowed the plaintiffs to continue their case against Hornseth because "the reasonableness of [his] actions cannot be determined."¹

Eight months later, plaintiffs requested leave to amend the complaint in order to reassert their claims against Commissioner Schwab and Judge Scheel. In support of their claims, plaintiffs cited to new evidence, gathered through discovery, showing that Scheel and Schwab, along with Hornseth, had played an extensive role in the adverse employment action against Wallace and Kniss. Specifically, plaintiffs proffered deposition testimony from Scheel, Schwab, and Hornseth indicating that Hornseth had discussed with them the possibility of terminating or disciplining Wallace and Kniss prior to the actual termination. Plaintiffs also presented Collette's deposition testimony detailing his meeting with the commissioners in Scheel's chambers. Further evidence presented showed that both Scheel and Schwab were well aware of and concerned about the numerous complaints being made by constituents regarding plaintiffs' stringent adherence to the TNRCC rules. As a result, the district court granted plaintiffs' motion to amend the complaint to add the two previously dismissed defendants.

Subsequently, defendants filed a second motion for summary judgment arguing that plaintiffs were terminated for poor performance such as failing to answer phones, refusing to wear uniforms, failing to use the front door, moving furniture, and for making comments to the TNRCC which "were wrong or unnecessary and confused and delayed the permitting process." The district court denied the motion, finding that there was a "genuine issue of material fact as to whether Plaintiffs' speech was a motivating factor in their termination." The district court also denied the request for qualified immunity, holding that the defendants had "acted objectively unreasonably in violating Plaintiffs' rights as outlined by clearly established law" because they "had ample information about Plaintiffs' efforts of enforcement of TNRCC rules and based their decision on what they knew about [their] aggressive enforcement efforts."

III

Defendants contend that the summary judgment evidence presented to the district court shows that they did not violate plaintiffs' First Amendment rights and that, as a result, they are entitled to qualified immunity for their actions. A "district court's order denying a defendant's motion for summary judgment [is] an immediately appealable . . . `final judgment' . . . where (1) the defendant was a public official asserting a defense of `qualified immunity,' and (2) the issue appealed concerned, not which facts the parties might be able to prove, but, rather, whether or not certain given facts showed a violation of `clearly established' law." Jones, 515 U.S. at 311, 115 S.Ct. 2151 (citing Mitchell v. Forsyth, 472 U.S. 511, 530, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)).

A denial of summary judgment based on qualified immunity is reviewed de novo. Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir.1999). Summary judgment may be granted if there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Boston Old Colony Ins. Co. v. Tiner Assocs., Inc., 288 F.3d 222, 227 (5th Cir.2002). In determining whether summary judgment is appropriate, we generally view the evidence and "all factual inferences from that evidence in the light most favorable to the party opposing the motion and all reasonable doubts about the facts are resolved in favor of the nonmoving litigant." Id. However, in an interlocutory appeal based on qualified immunity, a defendant "may not appeal a district court's summary judgment order insofar as that order determines whether or not the pretrial record sets forth a `genuine' issue of fact for trial." Jones, 515 U.S. at 319-320, 115 S.Ct. 2151. Thus, we are required "instead [to] consider whether the district court erred in assessing the legal significance of the conduct that the district court deemed sufficiently supported for...