Tharling v. City of Port Lavaca

United States Court of Appeals

Fifth Circuit

F I L E D

May 13, 2003

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Charles R. Fulbruge III

_______________________________ Clerk

No. 02-20061

_______________________________

ALLEN E. THARLING,

Plaintiff - Appellant,

VERSUS

CITY OF PORT LAVACA,

Defendant - Appellee.

_________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

__________________________________________________

Before: DAVIS, CYNTHIA HOLCOMB HALL*, and EMILIO M. GARZA,

Circuit Judges.

HALL, Circuit Judge:

Allen Tharling appeals the district court’s grant of

judgment as a matter of law in favor of the City of Port Lavaca

(“the City”). Tharling was terminated from his position as

police chief following a series of events that included

Tharling’s investigation of possible misconduct on the part of

both the City Council and the City’s Chief Building Official, and

a confrontation between Tharling and the City Manager. Tharling

brought suit against the City, alleging violations of the First

*

U.S. Circuit Judge of the Ninth Circuit, sitting by

designation.

Amendment and the Texas Whistleblower Act. After Tharling had

presented his evidence to the jury, the district court granted

the City’s motion for judgment as a matter of law as to both

claims. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

we AFFIRM.

FACTS

The City hired Tharling as its police chief in 1994. In

late 1999, Tharling began to investigate allegations that members

of the City Council were meeting and taking action without a full

quorum present and without notice to the public, in violation of

the Texas Open Meetings Act, Tex. Gov’t Code § 551.001 et seq.

Tharling’s investigation was the subject of “common gossip”

around City Hall.

Barbara Gibson became Acting City Manager in November 1999.

Approximately one month later, Tharling informed both Gibson and

then-Mayor Tiney Browning1 that he believed several members of

the City Council had violated the Opening Meetings Act. At this

time, Gibson suggested that Tharling establish a police

department policy whereby investigation of public officials would

be handled by an external agency. Despite Gibson’s suggestion,

Tharling continued his investigation. On June 12, 2000, Tharling

submitted a report to the Attorney General alleging that the City

1

In May 2000, Alex Davila replaced Browning as Mayor of Port

Lavaca.

2

Council had violated the Texas Open Meetings Act.

Shortly thereafter, Tharling became aware of allegations

that the Chief Building Official of the City, Ed Harrington, had

impersonated a police officer. Tharling initiated an

investigation, during which he spoke with several eyewitnesses

who had seen Harrington leave a Denny’s restaurant in Texas City,

Texas without paying, claiming that it was his prerogative as a

police officer. Subsequently, Tharling submitted a written

report regarding the Denny’s incident to Gibson. Gibson directed

Tharling to discontinue his investigation, and informed Tharling

that the matter had already been resolved.2 Shortly thereafter,

Tharling reported the Harrington incident to the Texas City

Police Department.

During this time, Ed Harrington’s wife was working as

Tharling’s secretary. On July 21, 2000, Tharling learned that

Mrs. Harrington was intercepting telephone messages related to

Tharling’s investigation of her husband. Tharling immediately

suspended Mrs. Harrington and removed her office key from her key

ring. After Mrs. Harrington filed a grievance regarding the

incident, Gibson summoned Tharling to her office. Gibson ordered

Tharling to return Mrs. Harrington’s key. Tharling refused to do

so, and informed Gibson that Mrs. Harrington was no longer his

secretary. Gibson was displeased with Tharling’s demeanor during

2

Harrington was suspended in connection with the incident.

3

this exchange, and subsequently ordered Tharling to return to her

office for further discussion. Tharling told Gibson that the

meeting would have to be postponed until the following morning

because he was feeling ill.

The next morning, Gibson presented Tharling with a

memorandum of suspension. At this time, Gibson and Tharling had

an unpleasant exchange during which Tharling referred to Gibson

as “Hitler.” At a City Council meeting on July 31, 2000, Gibson

recommended that the City Council vote to terminate Tharling’s

employment for insubordination. A unanimous City Council voted

to adopt Gibson’s recommendation. Tharling appealed, and on

August 14, 2000, five of six council members voted to reject

Tharling’s appeal.3

Tharling filed suit against the City on October 24, 2000.

The City’s motion for summary judgment was denied on December 2,

2001. The next day, a jury was empaneled and the trial began.

After the close of Tharling’s evidence, the City made an oral

motion for judgment as a matter of law as to both claims.4 The

3

The dissenting Council member, Ken Barr, testified at trial

that his vote was driven by “sympathy” for Tharling.

4

Tharling’s contention that the City’s motion for directed

verdict pertained only to the Whistleblower component of the

action is without merit. Council for the City specifically

referenced the First Amendment claim in his argument. Moreover,

the City argued that Tharling had not presented sufficient

evidence of knowledge on the part of the City Council, a

component of the First Amendment claim. Given the “liberal

spirit” with which we approach Rule 50, see Serna v. City of San

Antonio, 244 F.3d 479, 481-82 (5th Cir. 2001), this was more than

4

court granted the motion, and entered judgment on December 10,

2001. This appeal timely followed.

STANDARD OF REVIEW

We review de novo a district court’s ruling on a motion for

judgment as a matter of law. Anthony v. Chevron USA, Inc., 284

F.3d 578, 583 (5th Cir. 2002). Under this standard, we will

affirm a directed verdict only if, viewing the evidence presented

at trial in the light most favorable to the non-movant, “there

is no legally sufficient evidentiary basis for a reasonable jury”

to enter a contrary verdict. Id. at 582-83 (quoting Fed. R. Civ.

P. 50(a)(1)).

THE FIRST AMENDMENT CLAIM

A First Amendment retaliation claim has four elements: (1)

the plaintiff must suffer an adverse employment decision; (2) the

plaintiff’s speech must involve a matter of public concern; (3)

the plaintiff’s interest in commenting on matters of public

concern must outweigh the defendant’s interest in promoting

efficiency of the public services it performs; and (4) the

plaintiff’s speech must have substantially motivated the

defendant’s action. Harris v. Victoria Indep. Sch. Dist., 168

F.3d 216, 220 (5th Cir. 1999). The City argued in its motion for

judgment as a matter of law that Tharling’s evidence was

insufficient to prove the fourth requirement -- a requisite

sufficient basis for the district court to rule on both claims.

5

causal relationship between Tharling’s speech and his subsequent

termination.

Where, as here, an action against a municipality is premised

on 42 U.S.C. § 1983, “direct liability is appropriate only when

an injury is inflicted by lawmakers or those whose edicts and

acts may fairly be said to represent official policy.” Worsham

v. Pasadena, 881 F.2d 1336, 1339 (5th Cir. 1989) (citing Monell

v. City of New York Dep’t of Social Services, 436 U.S. 658, 694

(1978) (internal quotation marks omitted). Accordingly, a

reasonable jury could not return a verdict in Tharling’s favor

unless he presented evidence that an official policy-making

authority rendered an adverse employment decision against him,

and that such decision was substantially motivated by Tharling’s

speech on matters of public concern.

The existence of official policymaking authority is a

question of law to be decided by the court. Worsham, 881 F.2d at

1340 n. 8. The Port Lavaca charter provides that “[t]he chief of

police shall be appointed or removed by the City Manager with the

approval of [sic] two-thirds majority of the council.” Pursuant

to the city charter, while the City Manager had authority to

“remove” Tharling, removal could not become final until approved

by the City Council. Thus, the City Council was the final

policymaker for purposes of Tharling’s termination. See Worsham,

881 F.2d at 1340-41 (holding that local law providing for

6

“meaningful review” of employment decisions by the City Council

renders the City Council the final policymaker).5

Because the City Council is the relevant policymaking

authority, Tharling’s First Amendment claim rests on whether the

City Council’s July 31, 2000 termination vote was substantially

motivated by Tharling’s free speech activities.6 The City

contends that Tharling’s evidence was insufficient to permit a

reasonable jury to reach this conclusion. We agree.

At trial, Tharling presented only two pieces of evidence

relevant to whether the City Council was aware, prior to July 31,

2000, that he had made allegations of misconduct on the part of

either Ed Harrington or the City Council itself. First,

Tharling, elicited testimony from Gibson that Tharling’s

allegations against the City Council were the subject of “common

gossip” around City Hall. Port Lavaca City Council members,

however, work full-time private sector jobs and rarely enter City

5

Tharling’s argument that Gibson was an “agent” of the City

Council is without merit. The Supreme Court has explicitly held

that vicarious liability is “incompatible with the causation

requirement set out on the face of § 1983.” City of St. Louis v.

Praprotnik, 485 U.S. 112, 122 (1988).

6

Tharling also contends that the City Council’s August 14,

2000 denial of appeal is an actionable “adverse employment

decision.” However, Tharling’s argument is foreclosed by the

principle that an employee cannot place himself in a better

position as a result of exercising his right to free speech than

he would have been in if he had not spoken. See Mt. Healthy City

Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 285 (1977)

(articulating this principle in the context of a refusal to

rehire).

7

Hall during working hours. Thus, the connection between “gossip”

and actual knowledge on the part of the City Council is tenuous,

at best. Gibson’s testimony was therefore insufficient to permit

a reasonable juror to conclude that City Council members were

aware of Tharling’s allegations prior to their termination vote.

In addition, Tharling testified that he met with an unnamed

City Council member in 1999 and “went through some of the issues

with him of what some of the witnesses’ complaints were.”

Tharling further testified that, following this discussion,

Gibson advised Tharling that the City Council was interested in

creating an ordinance that would prohibit the police department

from investigating public officials. For the purpose of a motion

for judgment as a matter of law, we assume the veracity of both

contentions. However, neither Tharling’s role in an

investigation nor his desire to continue an investigation is

“speech” within the meaning of the First Amendment. Gillum v.

City of Kerrville, 3 F.3d 117, 121 (5th Cir. 1993). Notice to

the City Council that Tharling, the City’s police chief, was

conducting an investigation is not tantamount to notice that

Tharling made allegations of misconduct. Similarly, notice that

unnamed witnesses had lodged complaints against the City Council

is not tantamount to notice that Tharling himself made any

allegations. Thus, Tharling’s testimony was insufficient to

8

permit the conclusion that any members of the City Council had

notice of Tharling’s protected speech at the time of the

termination vote.

It is axiomatic that a party cannot be “substantially

motivated” by a circumstance of which that party is unaware. The

evidence presented at trial did not permit a reasonable jury to

conclude that the City Council was aware of Tharling’s

allegations against either the council itself or the City’s Chief

Building Official prior to its July 31, 2000 termination vote.

For this reason, no reasonable jury could have concluded that

Tharling’s speech substantially motivated the City Council’s

decision to terminate his employment. The district court

properly granted judgment as a matter of law in favor of the

City.

THE TEXAS WHISTLEBLOWER ACT CLAIM

In order to prevail under the Texas Whistleblower Act, a

plaintiff must demonstrate: 1) he is a public employee; 2) he

acted in good faith in making a report; 3) the report involved a

violation of law by an agency or employee; 4) the report was made

to an appropriate law enforcement authority; and 5) he suffered

retaliation. Duvall v. Texas Dep’t of Human Services, 82 S.W.3d

474, 478 (Tex. App. 2002); Tex. Gov’t Code § 554.002. The

parties in the instant case do not dispute that a reasonable jury

could conclude that Tharling was a public employee who reported a

9

violation of law. Similarly, the City does not contend that

Tharling acted in bad faith. Thus, we address only whether

Tharling’s reports were directed to appropriate law enforcement

authorities and, if so, whether Tharling experienced retaliation

as a consequence of such reports.

1. “Appropriate Law Enforcement Authority”

The Texas Whistleblower Act was amended in 1995 to define

“appropriate law enforcement authority” as a government official

or government entity that “an employee in good faith believes is

authorized to regulate under or enforce the law alleged to be

violated in the report or to investigate or prosecute a violation

of the criminal law.” Tex. Gov’t Code § 544.002(b).7 Otherwise

stated, the Act requires Tharling to show that “he honestly

believed he was reporting the perceived violation to an authority

within an entity which could regulate under or enforce the law in

issue or investigate or prosecute a criminal offense and,

moreover, that this belief was objectively reasonable.” Duvall,

82 S.W.3d at 480.

In the “appropriate law enforcement authority” inquiry, “the

particular law the public employee reported violated is critical

7

Prior to 1995, the Act did not define “appropriate law

enforcement authority” and caselaw supplied a broad definition.

See Castaneda v. Texas Dep’t of Agriculture, 831 S.W.2d 501, 504

(Tex. App. 1992) (“any entity with the capacity through legal

process or otherwise to take remedial action”). As noted in

Duvall, Castaneda and other pre-1995 cases have been superceded

by the amended Act. Duvall, 83 S.W.3d at 479.

10

to the determination.” Tex. Dep’t of Transp. v. Needham, 82

S.W.3d 314, 320 (Tex. 2002). Tharling alleges that he was

retaliated against for reporting Ed Harrington’s alleged

impersonation of a police officer and for reporting the City

Council’s alleged violations of the Texas Open Meetings Act, Tex.

Gov’t Code § 551.001 et seq. The City is entitled to judgment as

a matter of law unless a Tharling reported one or both of these

allegations to an appropriate law enforcement authority.

Tharling argues that he reported violations of the Texas

Open Meetings Act to Gibson, former Mayor Tiney Browning, and the

Attorney General. Therefore, we must decide whether Tharling

presented evidence that he reasonably believed that one or more

of these parties had power to regulate, enforce, investigate or

prosecute under the Texas Open Meetings Act.

The Open Meetings Act provides for both civil and criminal

penalties. See Tex. Gov’t Code § 551.142 (an “interested person”

may bring an action to enjoin violations of the Act); Tex. Gov’t

Code § 551.144 (knowing violation by a member of a governmental

body is a criminal offense). With respect to the civil

provisions, the statute is somewhat unusual in that it permits

virtually any “interested party” to bring an action to enjoin

violations. Tex. Gov’t Code § 551.142. Texas courts have

adopted “an extremely broad interpretation regarding who

constitutes an ‘interested person.’” Matagorda County Hosp. Dist.

v. City of Palacios, 47 S.W.3d 96, 102 (Tex. App. 2001).

11

However, the Texas Whistleblower Act requires that an

“appropriate law enforcement entity,” be “a part of a state or

local governmental entity or of the federal government.” Tex.

Gov’t Code § 554.002. Thus, the fact that Gibson and the mayor

could enforce the Open Meetings Act in their personal capacities

does not render them “appropriate law enforcement entities.” The

Act’s criminal provision, similarly, does not empower a City

Manager or mayor to regulate, enforce, investigate or prosecute.

Tharling presented no evidence at trial that he had a reasonable

belief to the contrary. On appeal, he merely asserts that Gibson

had disciplinary authority. This assertion is entirely

irrelevant to whether Tharling reasonably believed that Gibson

had power to regulate, enforce, investigate or prosecute

violations of the Open Meetings Act. See Needham, 82 S.W.3d at

320 (“law enforcement authority” does not encompass persons or

entities who merely have the power to discipline employees for

illegal conduct).

Although neither Gibson nor former mayor Tiney Browning are

law enforcement authorities, the Attorney General’s office is

empowered to investigate and prosecute violations of the Act.

Accordingly, the report to the Attorney General was properly made

to “an appropriate law enforcement authority” and can serve as

the basis for a claim under the Texas Whistleblower Act.

In addition to the alleged Open Meetings Act violation,

Tharling also made several reports regarding illegal conduct on

12

the part of the City’s Chief Building Official, Ed Harrington.

Tharling reported Harrington’s alleged impersonation of a police

officer to Gibson, the Texas City police, and the Texas Board of

Plumbing Examiners. As discussed above, Gibson’s authority to

discipline does not render her a law enforcement authority. See

Needham, 82 S.W.3d at 320. Similarly, there is no evidence that

the Board of Plumbing Examiners has authority to regulate,

enforce, investigate or prosecute unauthorized impersonations of

police officers. By contrast, however, the Texas City Police

Department is charged with enforcing the law in Texas City, where

the alleged violation occurred. Thus, the Texas City Police

Department is an appropriate law enforcement authority within the

meaning of the Texas Whistleblower Act.

2. Retaliation

Having determined that both Tharling’s report to the

Attorney General and his report to the Texas City Police

Department were reports to appropriate law enforcement

authorities, we must determine whether the City took adverse

personnel action against Tharling as a result of either report.

While the Texas Whistleblower Act does not explicitly require an

employee to prove a causal link between the report and the

subsequent discrimination, the Texas Supreme Court has held that

plaintiff must prove causation by a preponderance of the

evidence. City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex.

13

2000).

Tharling asserts that his reports of misconduct on the part

of the City Council and the Chief Building Official caused the

City to retaliate by terminating his employment. Tharling

presented neither direct nor circumstantial evidence that any

City officials were aware of the report to the Attorney General

prior to his termination. However, Tharling testified that

Gibson was aware of his report to the Texas City Police

Department. Thus, the vitality of Tharling’s Whistleblower claim

depends on whether a reasonable jury could conclude that Tharling

was subject to an adverse employment action as a result of

Gibson’s knowledge of Tharling’s report to the Texas City Police

Department.

In the First Amendment context discussed supra, a City

cannot be liable for the retaliatory acts of its employees unless

those employees have final policymaking authority. However, the

Texas Whistleblower Act does not impose such a restriction on

municipal liability. See, e.g., City of San Antonio v. Heim, 932

S.W.2d 287, 293 (Tex. App. 1996) (noting that the Whistleblower

Act protects employees from, inter alia, the acts of individual

supervisors). Thus, the City’s liability could arguably be

premised on Gibson’s decision to suspend, and later to recommend

that the City Council terminate, Tharling’s employment.

However, we reject this argument for two reasons. First,

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Tharling waived the issue of whether his suspension violated the

Whistleblower Act by failing to address it in his opening brief.

See Lockett v. EPA, 319 F.3d 678, 684 n.16 (5th Cir. 2003)

(issues not raised in the opening brief are deemed waived).

Second, although a reasonable jury could conclude that Gibson’s

recommendation was based in part on her knowledge of the Texas

City Police Department report, the City Council had the

opportunity to review the facts underlying Gibson’s

recommendation to terminate Tharling at its July 31, 2000

hearing. After doing so, the council voted to terminate Tharling

for insubordination. There is no evidence that the City Council

was aware of any reports made by Tharling to authorized law

enforcement authorities at the time it made the termination

decision. Texas courts have held in similar circumstances that

even if a recommendation to terminate was retaliatory in nature,

subsequent independent review of the facts followed by

ratification breaks the chain of causation. See Zimlich, 29

S.W.3d at 70 (citing cases).

Accordingly, there was no basis for a reasonable jury to

find a causal link between Tharling’s termination and either his

report to the Attorney General or his report to the Texas City

Police Department. The district court properly granted the

City’s motion for judgment as a matter of law as to Tharling’s

Texas Whistleblower Act claim.

15

CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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