Keith Hardesty v. Waterworks District 4 of Ward

Case: 14-31114 Document: 00513115305 Page: 1 Date Filed: 07/14/2015

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 14-31114 FILED

July 14, 2015

Lyle W. Cayce

KEITH HARDESTY, Clerk

Plaintiff - Appellee

v.

KENNY COCHRAN; OLLIE L. “JOHNNY” JOHNSON, III; WATERWORKS

DISTRICT #4 OF WARD FOUR; OCCIE NORTON,

Defendants - Appellants

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 2:13-CV-293

Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellee Keith Hardesty (“Hardesty”) brought a First

Amendment retaliation claim against Defendants-Appellants pursuant to 42

U.S.C. § 1983. 1 The individual defendants moved for summary judgment and

asserted the defense of qualified immunity. The district court denied the

* 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.

1 Hardesty also raised other claims, which the district court dismissed. Those claims

are not relevant to this interlocutory appeal.

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summary judgment motion. The individual defendants now appeal that order.

We affirm.

I.

The relevant facts, viewed in the light most favorable to Hardesty, are

as follows:

Hardesty worked as the plant manager for Defendant Waterworks

District No. 4 of Ward Four (the “District”). The District is a political

subdivision of the State of Louisiana that provides water service to an

unincorporated area of Calcasieu Parish outside of the City of Westlake. A

board of five commissioners (the “Board”) governs the District. Three of the

Board’s members, Occie Norton, Kenny Cochran, and Ollie L. “Johnny”

Johnson III, are named defendants in this suit (the “Board Defendants”). At

the time of the events relevant to this case, the Board also had another

member, Richard Hebert (“Hebert”), who is not a defendant in this suit, as well

as one vacancy.

Hardesty took a vacation in February 2011. When he returned, he heard

from the District’s consulting engineer that the Board was considering

allowing the adjacent city of Westlake to annex the District. By the time

Hardesty learned of the Board’s proposal, some, but not all, of the District’s

customers were already aware of the proposal.

Hardesty disfavored the annexation proposal because he believed that

“the system, if owned by the City of Westlake, would not efficiently furnish”

water services to its customers. Moreover, he believed that the annexation

would violate various laws. Thus, Hardesty felt duty-bound to inform the

community about the Board’s plans. Accordingly, Hardesty told several of the

District’s customers about the annexation proposal. Hardesty also advised

customers to attend Board meetings and object to the annexation plan.

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As a result, several dozen customers began regularly attending Board

meetings and voicing their objections to the annexation proposal. Ultimately,

the city of Westlake never annexed the District.

The Board Defendants told Hardesty at its April 12, 2011 meeting that

they were displeased by his decision to inform the District’s customers about

the annexation plan. Accordingly, the Board voted in favor of a motion to

terminate Hardesty if he engaged in “any other defiant acts.” By “defiant acts,”

the Board was referring solely to Hardesty’s communications with the

District’s customers.

On April 18, 2011, the Board voted to give every employee of the District

a raise except Hardesty. Hebert moved at a subsequent Board meeting to

reinstate Hardesty’s raise and make it retroactive, but the Board Defendants

defeated that motion.

At the January 16, 2012 Board meeting, Defendant Johnson moved to

terminate Hardesty’s employment “due to insubordination and defiance.” The

Board Defendants voted in favor of the motion, with only Hebert voting

against.

Hardesty sued Defendants-Appellants in state court, alleging that they

retaliated against him for exercising his free speech rights under the First

Amendment. Specifically, Hardesty alleges that the Board Defendants

terminated him because he told customers about the annexation plan.

Defendants-Appellants removed the case on federal question grounds.

The Board Defendants then moved for summary judgment on Hardesty’s First

Amendment retaliation claim, asserting qualified immunity. The district court

denied the motion. The Board Defendants now appeal the district court’s

interlocutory order denying their qualified immunity defense.

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II.

“Although a denial of summary judgment is typically unappealable,

defendants have a limited ability to appeal a denial of qualified immunity

under the collateral order doctrine.” 2 This Court has jurisdiction over such an

interlocutory appeal only to the extent that the district court’s order denying

summary judgment turns on an issue of law. 3

“Our court does not conduct a typical de novo review for an interlocutory

appeal of a denial of summary judgment on qualified immunity grounds.” 4

“Where the district court has found that a material issue of fact exists, we have

jurisdiction to review the materiality, but not the genuineness, of the factual

dispute.” 5 “This court must ‘accept the plaintiff’s version of the facts as true’

and may review de novo only the purely legal question of whether ‘the district

court erred in concluding as a matter of law that officials are not entitled to

qualified immunity on that given set of facts.’” 6 Thus, to the extent Defendants

challenge “the district court’s assessment of the facts established by or

inferable from the evidence,” the Court must dismiss the appeal. 7

Whether a public employee’s speech is entitled to First Amendment

protection is a legal question properly decided at the summary judgment

phase. 8

2 Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 467 (5th Cir. 2014) (emphasis

in original).

3 Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008) (citing Kinney v. Weaver, 367 F.3d

337, 346 (5th Cir. 2004) (en banc)).

4 Cutler, 767 F.3d at 469 (citing Kinney, 367 F.3d at 348).

5 Newman v. Guedry, 703 F.3d 757, 761 (5th Cir. 2012) (citing Freeman v. Gore, 483

F.3d 404, 410 (5th Cir. 2007)) (emphasis added).

6 Gobert v. Caldwell, 463 F.3d 339, 345 (5th Cir. 2006) (quoting Kinney, 367 F.3d at

347-48) (brackets omitted).

7 Palmer v. Johnson, 193 F.3d 346, 354 (5th Cir. 1999).

8 Charles, 522 F.3d at 513 n.17 (citing Williams v. Dall. Indep. Sch. Dist., 480 F.3d

689, 691-94 (5th Cir. 2007)).

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III.

“The doctrine of qualified immunity protects government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a reasonable person

would have known.’” 9 “To determine whether an official is entitled to qualified

immunity, the court asks (1) whether the plaintiff has alleged a violation of a

constitutional right, and (2) whether the defendant’s conduct was objectively

reasonable in light of the clearly established law at the time of the incident.” 10

The plaintiff bears the burden of negating the qualified immunity defense once

a defendant has properly raised it. 11

IV.

We first consider whether the summary judgment record contains

sufficient evidence to support the inference that the Board Defendants violated

Hardesty’s First Amendment rights. Viewing the evidence in the light most

favorable to Hardesty and deferring to the district court’s judgment regarding

the genuineness of factual disputes in the record, we conclude that it does.

Although public employees do not wholly relinquish their free speech

rights by virtue of accepting governmental employment, the First Amendment

nonetheless permits government employers to exercise a degree of control over

their employees’ words and actions. 12 Thus, to establish a prima facie case for

First Amendment retaliation, a public employee must show that:

9 Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818 (1982)).

10 Charles, 522 F.3d at 511 (quoting Connelly v. Tex. Dep’t of Criminal Justice, 484

F.3d 343, 346 (5th Cir. 2007)).

11 Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012) (quoting Brumfield v.

Hollins, 551 F.3d 322, 326 (5th Cir. 2008)).

12 Phillips v. City of Dallas, 781 F.3d 772, 776 (5th Cir. 2015) (citing Lane v. Franks,

134 S. Ct. 2369, 2377 (2014); Garcetti v. Ceballos, 547 U.S. 410, 418 (2006)).

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(1) He suffered an adverse employment action;

(2) He spoke as a citizen, rather than pursuant to his official job

duties;

(3) He spoke on a matter of public concern;

(4) His interest in the speech outweighed the government’s

interest in the efficient provision of public services; and

(5) His speech precipitated the adverse employment action. 13

Defendants do not dispute that Hardesty has created a genuine issue of

material fact as to elements (1), (3), and (4). Defendants primarily argue that

Hardesty’s claim fails because he spoke pursuant to his official job duties,

rather than as a citizen. Defendants also contend that Hardesty engaged in

misconduct that justified his termination. We will address each issue in turn.

A.

“[W]hen public employees make statements pursuant to their official

duties, the employees are not speaking as citizens for First Amendment

purposes, and the Constitution does not insulate their communications from

employer discipline.” 14 Thus, we must first consider whether Hardesty spoke

as a citizen, rather than as an employee, when he informed the District’s

customers of the Board’s annexation proposal.

The Supreme Court has declined to articulate a comprehensive

framework for determining whether and when a public employee is speaking

13 Wilson v. Tregre, --- F.3d ----, 2015 WL 2457394, at *2 (5th Cir. May 22, 2015)

(quoting Nixon v. City of Houston, 511 F.3d 494, 497 (5th Cir. 2007)).

14 Garcetti, 547 U.S. at 421 (2006).

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as a citizen. 15 Instead, the inquiry is practical and fact-intensive. 16

Nevertheless, courts have identified several factors relevant to that analysis.

First, if an employee’s job responsibilities require him to engage in the

speech in question, then the speech is not protected. 17 Thus, if the employer

has commissioned the speech or compensated the employee to make the

speech, then the speech clearly falls within the employee’s official duties. 18

The Court should also inquire whether the speech in question is “the

kind of activity engaged in by citizens who do not work for the government.” 19

If the speech has “no relevant analogue to speech by citizens who are not

government employees,” then it lacks First Amendment protection. 20

Because “[f]ormal job descriptions often bear little resemblance to the

duties an employee actually is expected to perform, . . . the listing of a given

task in an employee’s written job description is neither necessary nor sufficient

to demonstrate that conducting the task is within the scope of the employee’s

professional duties for First Amendment purposes.” 21 Nevertheless, a written

job description may still be “instructive.” 22

Additionally, when an employee merely voices a grievance up the chain

of command at his workplace, it is particularly likely that the employee is

speaking pursuant to his official duties. 23 Where, by contrast, “a public

employee takes his job concerns to persons outside the work place, . . . then

15 Gibson v. Kilpatrick, 773 F.3d 661, 667 (5th Cir. 2014) (citing Garcetti, 547 U.S. at

424).

16 See Garcetti, 547 U.S. at 424.

17 Williams, 480 F.3d at 693.

18 Garcetti, 547 U.S. at 422.

19 Id. at 423.

20 Id. at 424.

21 Id. at 424-25.

22 Gibson, 773 F.3d at 671 (citing Williams v. Riley, 275 F. App’x 385, 389 (5th Cir.

2008)).

23 See Wilson, 2015 WL 2457394, at *2; Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.

2008).

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those external communications are ordinarily not made as an employee, but as

a citizen.” 24 However, whether the employee directs the speech internally or

externally is not alone dispositive. 25

The fact that an employee gives a statement “in an unauthorized

manner, or in contravention of the wishes of his superiors does not convert his

statement . . . into protected citizen speech.” 26

Notably, it is not the content of the speech that matters, but rather the

role the speaker occupied when he said it. 27 Therefore, “[t]he critical question .

. . is whether the speech at issue is itself ordinarily within the scope of an

employee’s duties, not whether it merely concerns those duties.” 28

Consequently, the First Amendment protects speech even when it “concerns

information related to or learned through public employment.” 29

1.

The Board Defendants first argue that the district court erred by

considering an affidavit describing Hardesty’s job duties that he submitted in

response to the Board Defendants’ summary judgment motion. Hardesty

testified at his deposition that he “fe[lt] like [he] had a responsibility . . . as the

manager of the Water District” to inform the District’s customers about the

annexation proposal. Then, in his affidavit, Hardesty averred that telling the

District’s customers about the annexation plan was not part of his job duties.

24 Davis, 518 F.3d at 313 (citing Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006)). Accord

Charles, 522 F.3d at 514.

25 Gibson, 773 F.3d at 670; Williams, 480 F.3d at 694 n.1 (citations omitted).

26 Nixon, 511 F.3d at 499.

27 Davis, 518 F.3d at 312 (citing Williams, 480 F.3d at 692).

28 Hurst v. Lee Cnty., Miss., 764 F.3d 480, 484 (5th Cir. 2014) (citing Lane, 134 S. Ct.

at 2379).

29 Lane, 134 S. Ct. at 2377, 2379.

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The district court reconciled Hardesty’s affidavit with his deposition testimony

as follows:

Hardesty’s deposition testimony is susceptible to differing

interpretations. One interpretation is that when Hardesty said he

felt that he “had a responsibility” as the manager that he was

referring to an official responsibility – a task to be completed in

accordance with the requirements of his position. The other

interpretation is that Hardesty was referring to a moral

responsibility to inform the public arising from the unique access

to knowledge and experience he had as a plant manager. The

affidavit appears to be an attempt to clarify which of these

interpretations is appropriate, and because of the ambiguity of the

deposition testimony, the affidavit can be fairly considered as a

supplement to that testimony. Therefore, finding the affidavit to

be neither a sham nor so clearly contradictory as to warrant

exclusion, the court will consider the affidavit in ruling on the

defendants’ motions for summary judgment.

The Board Defendants claim that Hardesty may not create a genuine dispute

of material fact by submitting an affidavit that contradicts his earlier sworn

deposition testimony. 30

“This court does not allow a party to defeat a motion for summary

judgment using an affidavit that impeaches, without explanation, sworn

testimony.” 31 However, “[w]hen an affidavit merely supplements rather than

contradicts prior deposition testimony, the court may consider the affidavit

30 This issue arguably involves “the district court’s assessment of the facts established

by or inferable from the evidence.” See Palmer, 193 F.3d at 354. However, our precedent

suggests that, even though this is an interlocutory appeal, we nevertheless have jurisdiction

to consider whether the district court should have excluded Hardesty’s affidavit from the

summary judgment record. See Mersch v. City of Dall., Tex., 207 F.3d 732, 734-35 (5th Cir.

2000) (holding that this Court has jurisdiction to “review the admissibility of evidence on

appeal” in the context of an interlocutory appeal of an order denying qualified immunity).

31 S.W.S. Erectors, Inc. v. Infax, Inc., 72 F.3d 489, 495 (5th Cir. 1996) (citing Thurman

v. Sears, Roebuck & Co., 952 F.2d 128, 137 n.23 (5th Cir. 1992); Albertson v. T.J. Stevenson

& Co., 749 F.2d 223, 228 (5th Cir. 1984)). Accord Doe v. Dall. Indep. Sch. Dist., 220 F.3d 380,

386 (5th Cir. 2000) (citations omitted).

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when evaluating genuine issues in a motion for summary judgment.” 32 An

affidavit permissibly supplements earlier deposition testimony if it merely

“clarifie[s] or amplifie[s] the facts by giving greater detail or additional facts

not previously provided in the deposition.” 33 By contrast, if the affiant “was

thoroughly questioned” about the issue at the deposition and answered the

questions “unequivocal[ly],” contradictory averments in the subsequent

affidavit will not create a genuine dispute of material fact. 34

We conclude, essentially for the reasons given by the district court, that

Hardesty’s affidavit clarified, rather than contradicted, his ambiguous

deposition testimony. The district court was therefore allowed to consider the

affidavit when ruling on the Board Defendants’ summary judgment motion.

2.

Having dismissed the Board Defendants’ argument that the district

court improperly considered Hardesty’s affidavit, we next conclude that the

record evinces a dispute of material fact regarding whether Hardesty spoke as

a citizen.

After reviewing the summary judgment record in its entirety, the district

court concluded:

[A]lthough Hardesty’s job description lists “public relations with

customers,” this is not dispositive. While it is uncontroverted that

Hardesty acted as a representative for the Water District in

negotiating contracts, there is no evidence that making public

statements was ordinarily within his duties. Furthermore, even if

Hardesty’s job functions ordinarily included public statements,

this fact cannot be construed to mean that every communication

with an individual who happened to be a customer of the Water

32 S.W.S. Erectors, Inc., 72 F.3d at 496 (citing Clark v. Resistoflex Co., 854 F.2d 762,

766 (5th Cir. 1988)).

33 Id.

34 See Doe, 220 F.3d at 386 (citing Clark, 854 F.2d at 766-67).

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District would be pursuant to Hardesty’s official duties – even if

some of those conversations included information about his job or

opinions on issues related to his job.

There is no indication that these comments were characterized or

classified as official communications on behalf of the Water

District. There is similarly no allegation that the statements by

Hardesty were in furtherance of job performance of the Water

District’s interests. The comments were not made to all Water

District customers, and Hardesty had a prior personal relationship

with at least one of the individuals he spoke with. Therefore,

Hardesty’s speech was not within the course of his ordinary duties,

and he was speaking as a citizen for purposes of determining

whether this speech is entitled to protection under the Fourth [sic]

Amendment.

Again, we have “jurisdiction to review the materiality, but not the genuineness,

of the factual dispute[s]” identified by the district court. 35 We therefore take

the district court’s characterization of the facts as given.

The district court properly applied the law to those facts when

concluding that Hardesty’s speech was entitled to First Amendment

protection. The court correctly concluded that the fact that Hardesty’s job

description listed “public relations with customers” is not dispositive. 36 The

fact that Hardesty was not paid or ordered to inform customers of Board

proposals that could adversely affect them suggests that he spoke as a citizen

rather than pursuant to his job duties. 37 Although Hardesty communicated

information concerning and obtained during the course of his employment,

that does not deprive the speech of First Amendment protection. 38 The fact

that Hardesty raised his grievances externally rather than internally further

35 Newman, 703 F.3d at 761 (citing Freeman, 483 F.3d at 410) (emphasis added).

36 Garcetti, 547 U.S. at 424-25.

37 See id. at 422.

38 See Lane, 134 S. Ct. at 2377, 2379.

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indicates that he spoke as a citizen. 39 Likewise, discussing community affairs

and advising members of the community to attend and speak out at board

meetings is the sort of speech in which private citizens who do not work for the

government frequently engage. 40 We therefore decline to disturb the district

court’s ruling on this issue.

B.

The Board Defendants also argue that they lawfully fired Hardesty

because he engaged in various acts of misconduct unrelated to his speech. The

district court considered and rejected that argument. Per the district court:

While the court does not question there were quite possibly myriad

reasonable bases for terminating Hardesty’s employment, none of

those reasons were expressed in the basis for the motion to

terminate his employment at the Board meeting. The issue is not

whether Hardesty could have been disciplined for his actions, but

whether he would have been disciplined if he had not engaged in

protected speech.

Once again, we lack jurisdiction to review “the district court’s

assessment of the facts established by or inferable from the evidence;” we must

take the district court’s characterization of the evidence as given. 41 The Board

Defendants are challenging the district court’s assessment of the evidence of

Hardesty’s misconduct, so we have no jurisdiction to consider the Board

Defendants’ argument that they terminated Hardesty for reasons unrelated to

his First Amendment activities. 42

39 See Davis, 518 F.3d at 313 (citing Freitag, 468 F.3d 528); Charles, 522 F.3d at 514.

40 See Garcetti, 547 U.S. at 423-24 (“Employees who make public statements outside

the course of performing their official duties retain some possibility of First Amendment

protection because that is the kind of activity engaged in by citizens who do not work for the

government.”).

41 See Palmer, 193 F.3d at 354.

42 In an attempt to portray this issue as a purely legal question that this Court has

jurisdiction to consider on interlocutory review, Defendants analyze Hardesty’s alleged

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In any event, even if we did have jurisdiction to consider the Board

Defendants’ argument, we would reject it. “[S]ummary disposition of the

causation issue in First Amendment retaliation claims is generally

inappropriate.” 43 As the district court correctly noted, although the record

contains some evidence that Hardesty engaged in misconduct, it contains no

evidence that the Board Defendants terminated Hardesty and denied him a

raise for that reason. 44 Rather, all the evidence suggests that the Board

terminated Hardesty solely because of his speech acts.

V.

Because Hardesty has demonstrated a dispute of material fact with

respect to whether the Board Defendants retaliated against him for exercising

his First Amendment rights, we must proceed to the “clearly established law”

prong of the qualified immunity analysis.

“An official sued under § 1983 is entitled to qualified immunity unless it

is shown that the official violated a statutory or constitutional right that was

‘clearly established’ at the time of the challenged conduct.” 45 “[A] defendant

cannot be said to have violated a clearly established right unless the right’s

misconduct through the lens of the “objective reasonableness”/”clearly established law” prong

of the qualified immunity analysis, rather than the factual issue of causation. This is

disingenuous. The misconduct evidence clearly concerns a purely factual issue: whether the

Board terminated Hardesty for his speech or for some other reason.

43 Haverda v. Hays Cnty., 723 F.3d 586, 595 (5th Cir. 2013) (citing Click v. Copeland,

970 F.2d 106, 113-14 (5th Cir. 1992)).

44 On two occasions, the Board did chastise Hardesty for regularly starting work at

5:00 A.M. instead of the normal 7:00 A.M. start time without the Board’s approval, but the

record contains no evidence that the Board subjected Hardesty to any other discipline for

doing so. In any event, Defendants do not include that particular infraction in their list of

violations that supposedly justify Hardesty’s termination.

45 Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (quoting Ashcroft v. al-Kidd, 131

S. Ct. 2074, 2080 (2011)).

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contours were sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was violating it.” 46

In Cutler v. Stephen F. Austin State University, 767 F.3d 462 (5th Cir.

2014), we considered whether First Amendment retaliation principles

regarding public employees were clearly established prior to 2010. We

concluded that numerous Supreme Court and Fifth Circuit decisions gave the

defendants clear warning that when a public employee engages in speech

outside of his employment duties, and the employee directs his speech

externally rather than within the chain of command, the employer may not

discipline the employee for engaging in the speech in question. 47 The law was

therefore clearly established when the Board Defendants took adverse

employment actions against Hardesty in 2011 and 2012. The Supreme Court’s

recent decision in Lane v. Franks, 134 S. Ct. 2369 (2014) did not alter First

Amendment jurisprudence in any way that would render the currently

applicable law not clearly established under these facts. 48

We therefore affirm the district court’s order denying the Board

Defendants qualified immunity. We remand the case to the district court for

further proceedings.

AFFIRMED and REMANDED.

46 Id. (citing Ashcroft, 131 S. Ct. at 2083-84).

47 767 F.3d at 471-73 (citing Garcetti, 547 U.S. 410; Charles, 522 F.3d 508; Davis, 518

F.3d 304; Williams, 480 F.3d 689).

48 See Graziosi v. City of Greenville Miss., 775 F.3d 731, 737 n.7 (5th Cir. 2015)

(“Despite recognizing that aspects of Lane ‘appear to offer the prospect of new law,’ we

ultimately determined that, ‘Lane does not appear to have altered the standard for whether

public employees speak pursuant to their official duties, but appears rather to be an

application of Garcetti’s rule.’” (quoting Gibson, 773 F.3d at 668)); Cox v. Kaelin, 577 F. App’x

306, 313 (5th Cir. 2014) (per curiam) (holding, post-Lane, that “[t]he law is clearly established

that a public employee may be neither discharged nor demoted in retaliation for exercising

his First Amendment rights”).

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