The opinion
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-11370
JERRY L. CLARK and MICHAEL L. RILEY,
Plaintiffs-Appellees,
versus
THE CITY OF WILMER, TEXAS; BILLY WICKLIFFE;
GENE BOLLINGER; EUGENE ST. GEAN; VERNA RILEY;
and EUGENE LOWE,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Texas
(3:96-CV-2575-R)
April 9, 1999
Before REAVLEY, POLITZ, and SMITH, Circuit Judges.
PER CURIAM:*
The City of Wilmer, its Mayor, and four city council members appeal the
trial court’s rejection of their motion for summary judgment based on their claimed
qualified immunity defense against the claims brought by Jerry L. Clark, the former
city Police Chief, and Michael L. Riley, the former city Assistant Police Chief. For
the reasons assigned, we affirm.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
BACKGROUND
Clark and Riley supported a slate of candidates who unsuccessfully opposed
some city council members and supported a collective bargaining initiative that
was defeated. Subsequently, in June 1996, the individual defendants – with the
Mayor and one of the council members abstaining – voted to terminate plaintiffs’
employment. Clark and Riley sued, alleging unlawful discharge in violation of the
first amendment. Defendants denied that Clark and Riley were fired for exercising
their first amendment rights and contended that, even if the firings were politically
motivated, they were entitled to qualified immunity. The trial court rejected their
motion for summary judgment on the qualified immunity defense, holding that
multiple factual disputes precluded the grant of summary judgment and, assuming
plaintiffs’ firings were retaliatory, defendants were not entitled to qualified
immunity as a matter of law.
ANALYSIS
Under the applicable two-prong test, defendants are not entitled to the
defense of qualified immunity if the plaintiffs have alleged the violation of a
clearly established constitutional right and the defendants’ conduct was objectively
unreasonable in light of clearly established law at the time of the firings.2 It has
long been established in this circuit that government employees cannot lawfully be
discharged in retaliation for commenting on matters of public concern unless their
interest in exercising their first amendment rights is outweighed by the
2
See, e.g., Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir. 1998).
2
government’s countervailing interest in maintaining an efficient and effective
workplace.3 When the employee who has been discharged holds a policymaking
position, the balance may more readily tilt in the government’s favor. 4 But the
mere fact that the fired employee was a policymaker does not automatically render
a retaliatory firing lawful. “As far back as 1985, the established law in this circuit
has been that a public employer cannot retaliate against an employee for expression
protected by the [f]irst [a]mendment merely because of the employee’s status as a
policymaker.”5 “[S]ans an allegation of disruption” an employee’s “partisan
affiliation or political activity can [n]ever be proper factors in a personnel
decision.”6
Defendants concede that plaintiffs’ speech qualifies as a matter of public
concern. They contend, however, that plaintiffs were policymakers whose
termination would have been justified under the balancing test noted above. But
the summary judgment record is devoid of any evidence that plaintiffs’ speech
interfered with the smooth operation of the police department. In part, this
omission is a necessary result of defendants’ formal position in the district court:
they denied that plaintiffs were fired because of their speech, making it impossible
3
Connick v. Myers, 461 U.S. 138 (1983); Pickering v. Board of Education, 391 U.S. 563
(1968); Vojvodich v. Lopez, 48 F.3d 879 (5th Cir. 1995).
4
See, e.g., Kinsey v. Salado Indep. Sch. Dist., 950 F.2d 988, 994-96 (5th Cir. 1992) (en
banc).
5
Brady v. Fort Bend County, 58 F.3d 173 (5th Cir. 1995), reh’g en banc granted (5th Cir.
Aug. 25, 1995) and dismissed for lack of jurisdiction (5th Cir. Nov. 17, 1995).
6
Id.
3
for them to adduce evidence that Clark and Riley were fired because of the
disruption occasioned by their speech.
Fifth Circuit law was clear in June 1996 -- as it is today -- that, absent a
showing of a qualifying amount of disruption, policymaking employees cannot be
fired for availing themselves of their right to comment on matters of public
concern.7 We therefore conclude and hold that the trial court properly rejected
defendants’ qualified immunity defense.8 As a consequence of today’s disposition,
we need not consider the disputed facts issue. AFFIRMED.
7
Defendants urge that in Brady we limited the holding in Vojvodich – that retaliatory
discharge of policymaking employees is unlawful absent some showing of disruption -- to a single
class of employees: deputy sheriffs. But defendants suggest no principled or logical basis upon which
we could carve out deputy sheriffs from the more general class of policymaking employees. Nor do
we construe Brady as so holding.
8
We decline defendants’ invitation to reverse the trial
court’s refusal to grant qualified immunity to the Mayor because he
abstained from voting to fire plaintiffs. Further factual
development is required to determine his liability.
4