The opinion
Case: 19-30997 Document: 00515560636 Page: 1 Date Filed: 09/11/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 11, 2020
No. 19-30997 Lyle W. Cayce
Clerk
George Webb,
Plaintiff—Appellee,
versus
Mike Stone, individually and in his official capacity,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 3:17-CV-1605
Before Barksdale, Elrod, and Ho, Circuit Judges.
Per Curiam:*
Plaintiff-Appellee George Webb sued Defendant-Appellant Mike
Stone, the sheriff of Lincoln Parish, Louisiana, under 42 U.S.C. § 1983, after
Stone terminated Webb’s employment as a deputy in the Lincoln Parish
Sheriff’s Office. Webb alleged that Stone fired him for exercising his
constitutional rights, including his right to run for public office and his right
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-30997
to speak about his own political campaign. Denying most of the facts alleged
in Webb’s complaint and asserting qualified immunity, Stone moved for
summary judgment. The district court granted the motion in part and denied
it in part. Notably, the district court denied summary judgment on Webb’s
First Amendment claim, holding that, when genuinely disputed facts are
assumed in Webb’s favor, Stone’s actions constitute a violation of clearly
established law. Stone brought this interlocutory appeal to challenge that
conclusion. See Mitchell v. Forsyth, 472 U.S. 511, 530 (1985) (holding that
denials of qualified immunity are immediately appealable under 28 U.S.C.
§ 1291).
“On an appeal of a denial of summary judgment on the basis of
qualified immunity, our jurisdiction is limited to examining the materiality of
factual disputes the district court determined were genuine.” Cole v. Carson,
935 F.3d 444, 452 (5th Cir. 2019) (en banc). In other words, in an
interlocutory appeal such as this one, we “consider only whether the district
court erred in assessing the legal significance of the conduct that the district
court deemed sufficiently supported for purposes of summary judgment.” Id.
(quoting Trent v. Wade, 776 F.3d 368, 376 (5th Cir. 2015)). Thus, accepting
the genuineness of material factual disputes identified by the district court
and assuming all genuinely disputed facts in favor of the nonmovant, we ask
(1) whether the facts show the violation of a constitutional right that (2) was
clearly established at the time of the violation. Id. at 451–52.
Here, the district court concluded that nearly every material fact is the
subject of a genuine dispute. Specifically, the district court observed genuine
disputes of material fact concerning: whether Webb caused a disruption in
the workplace; “what the exact time, place, and manner of Webb’s activities
were”; whether Webb engaged in “hostile, abusive, or insubordinate”
behavior; and, critically, whether Stone’s termination of Webb was
motivated by Webb’s political speech.
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Two examples suffice. Stephen Williams, who was Webb’s
supervisor and rumored to be “Stone’s hand-picked successor,” was
politicking in the office. The fact that Webb was fired, while Williams was
not, raises a factual dispute about whether Stone’s actions were politically
motivated. Stone responds that Webb had been insubordinate, including
calling the sheriff a “son of a b—” in private meetings. But Webb asserts
that he “does not recall” making the comment, that Stone was not present,
that it at most concerned a single incident, and that Webb was never
disciplined in any way for the purported affront. Those examples are not
exhaustive. But they go to show, as the district court concluded, that “factual
dispute[s] must be resolved to make the qualified immunity determination”
in this case. Manis v. Lawson, 585 F.3d 839, 843 (5th Cir. 2009). That means
we “lack jurisdiction over the appeal.” Id.
It has been clearly established for 50 years “that a state cannot
condition public employment on a basis that infringes the employee’s
constitutionally protected interest in freedom of expression.” Connick v.
Myers, 461 U.S. 138, 142 (1983) (citing Keyishian v. Bd. of Regents, 385 U.S.
589, 605–06 (1967)) (additional citations omitted); see also Maldonado v.
Rodriguez, 932 F.3d 388, 393 (5th Cir. 2019) (“In a series of cases, this court
has . . . concluded that the politically-motivated demotions or terminations
of . . . Deputy Sheriffs . . . were actions not only afoul of the First Amendment
but, as of 1993, so ‘clearly established’ as to negate the defense of qualified
immunity.”); Vojvodich v. Lopez, 48 F.3d 879, 887 (5th Cir. 1995). Viewing
all of the disputed material facts in Webb’s favor, we cannot say that the
district court erred by finding Stone ineligible for qualified immunity or by
denying in part his motion for summary judgment.
Stone’s arguments to the contrary fall short. First, he contends that
as a factual matter, “Webb’s protected speech did not lead to his
termination.” But the district court expressly concluded that “genuine
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issues of material fact preclude finding that Webb’s decision to run for sheriff
was not a motivating factor in this case.” That dispute is certainly material,
and this court may only review issues’ “materiality, not their genuineness.”
Manis, 585 F.3d at 842.
Similarly, Stone argues that “it is manifest that the sheriff reasonably
concluded that Webb . . . incited a situation sufficiently serious to impact
morale and function.” But the district court noted several “disputes of fact
relevant to determining whether Webb’s behavior was disrupting close
working relationships” including whether Webb’s “activities actually caused
disruption in the workplace.” We simply lack the jurisdiction to adjudicate
the factual questions that Stone asks us to resolve.
Finally, Stone contends that even assuming a violation had occurred,
the right was not clearly established. Viewing the record in the light most
favorable to Webb, Stone terminated Webb because of Webb’s decision to
run for sheriff, even though Webb’s actions did not negatively impact the
office’s ability to function. This circuit has made clear that “by January 1992
at the latest, the law was . . . clear that . . . a public employer cannot act against
an employee because of the employee’s affiliation or support of a rival
candidate unless the employee’s activities in some way adversely affect the
government’s ability to provide services.” Vojvodich, 48 F.3d at 887. The
district court did not err by holding that the law was clearly established.
* * *
Lacking jurisdiction to review the genuineness of the factual disputes
identified by the district court and concluding that those factual disputes are
material to the question of qualified immunity, we DISMISS Stone’s
interlocutory appeal and REMAND the case to the district court for further
proceedings.
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