Opinion

Hawkland v. Hall

Court
Court of Appeals for the Fifth Circuit
Filed
Jun 17, 2021
Status
Unpublished
Nature of suit
Civil Rights
Cited by
0 cases
Authority
More cited than 15.7%

“Contrast, for example, the expressions made by [an employee] whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day.”

How later courts described this case

  • “Contrast, for example, the expressions made by [an employee] whose letter to the newspaper had no official significance and bore similarities to letters submitted by numerous citizens every day.”
  • comparing different sections of employee’s internal complaint letter to her official position and noting “some of [the letter] clearly relates to [her] job as an internal auditor, other parts do not”
  • “This is not a case where [plaintiff] wrote to the local newspaper or school board with his athletic funding concerns.”
  • “[T]he confidential nature of [plaintiff’s] speech alone suggests that it was not part of his ‘ordinary’ professional duties.”

Written by the judges who cited it.

The opinion

Case: 20-10901 Document: 00515903425 Page: 1 Date Filed: 06/17/2021

United States Court of Appeals

for the Fifth Circuit United States Court of Appeals

Fifth Circuit

FILED

June 17, 2021

No. 20-10901 Lyle W. Cayce

Clerk

Robert A. Hawkland,

Plaintiff—Appellee,

versus

Burke Hall, individually and in his capacity as President of Board

of Trustees of the Grand Prairie Independent School

District; Vicki Bridges, individually and as Assistant

Superintendent of the Grand Prairie Independent

School District; Phil Jimerson, individually and in his capacity as

Interim Assistant Superintendent of Operations of the

Grand Prairie Independent School District,

Defendants—Appellants.

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:19-CV-1822

Before Higginbotham, Stewart, and Wilson, Circuit Judges.

Per Curiam:*

*

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opinion should not be published and is not precedent except under the limited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.

Case: 20-10901 Document: 00515903425 Page: 2 Date Filed: 06/17/2021

Robert Hawkland brought 42 U.S.C. § 1983 claims against his former

employer, the Grand Prairie Independent School District (the “District”),

for employment retaliation in violation of the First Amendment. Suing the

District, two administrators, and a member of the Board, Hawkland alleged

he was improperly terminated because of statements he made during an

internal investigation into the District’s finances. Defendants filed motions

to dismiss for failure to state a claim, asserting that Hawkland spoke as an

employee, such that his statements were not protected speech. Alternatively,

defendants asserted that qualified immunity barred his claims against them.

The district court denied defendants’ motions. Concluding that Hawkland’s

speech was made pursuant to his official duties, we REVERSE the court’s

denial of defendants’ motions to dismiss and REMAND for entry of

judgment in favor of defendants.

I.

In 2017, District Superintendent Susan Hull faced public criticism for

residing in a home purchased and renovated with District funds. Responding

to rumors of financial impropriety, the District’s Board of Trustees hired an

outside law firm to investigate the District’s management and accounting

policies—including the purchase and renovation of Hull’s home. In May

2018, the firm concluded its investigation. Though it publicly released only

a portion of its final report, the firm did not find any actionable misconduct.

Hawkland was an employee of the District for approximately two

decades. In the last five years of his tenure, he was a manager of the District’s

HVAC system. As part of the internal investigation, Hawkland and other

District employees were interviewed by the investigating law firm.

According to the complaint, the Superintendent’s office required

Hawkland’s participation, and the firm assured him there would be no

retaliation for truthful statements. The firm and a member of the District’s

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No. 20-10901

Board asked Hawkland questions, and his answers negatively reflected on

Hull and her use of District resources.

After the investigation concluded, Hawkland’s responses were

conveyed to Hull and Burke Hall, the current President of the Board.1

Hawkland was thus revealed as a source of information about the District’s

purported mismanagement of funds. Thereafter, he was excluded from

ordinary meetings, his department’s budget was reduced, and Vicki

Bridges—then Assistant Superintendent of Operations—instructed him to

refrain from speaking on school district practices. Phil Jimerson, former

Interim Assistant Superintendent of Operations, also inquired into

Hawkland’s management of the HVAC system, which Hawkland alleges was

a front to find justification for terminating his employment. About a year

after the investigation concluded, Hull fired Hawkland in June 2019 after he

refused to resign. No criticisms of his performance or behavior, nor

disciplinary procedures, were mentioned.

Hawkland filed his complaint in July 2019 and an amended complaint

in October 2019 (the operative complaint for this appeal). He asserts

multiple § 1983 claims. First, he alleges the District is liable for First

Amendment employment retaliation. He maintains the District followed an

informal policy or custom of preventing its employees from “disclosing or

discussing any matter that might cast the District or Superintendent Hull in

a negative light” and “retaliate[ed] against those who did by taking or

threatening to take adverse employment action.” Second, and on the same

1

The amended complaint does not specify if Hall was President or Vice President

of the Board when he learned of Hawkland’s statements.

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No. 20-10901

alleged facts, he brings First Amendment retaliation claims against Hall,

Bridges, and Jimerson in their individual capacities.2

The individual defendants filed motions to dismiss under Federal

Rule of Civil Procedure 12(b)(6), asserting Hawkland failed to a state a claim

for First Amendment retaliation and interposing the defense of qualified

immunity. In August 2020, the district court denied their motions.

Defendants then filed this interlocutory appeal.

II.

The denial of a motion to dismiss predicated on qualified immunity is

an “immediately appealable [collateral] order.” Zapata v. Melson, 750 F.3d

481, 484 (5th Cir. 2014); see Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 193–

94 (5th Cir. 2009). We have pendant appellate jurisdiction when an

appealable order is “inextricably intertwined” with an unappealable order.

Thornton v. Gen. Motors Corp., 136 F.3d 450, 453–54 (5th Cir. 1998). Here,

the district court’s one-page order denying the defendants’ motions to

dismiss made no express mention of qualified immunity, but the court’s

ruling impliedly rejected the defendants’ alternative defense. When a district

court denies a motion to dismiss that includes the defense of qualified

immunity, and thereby holds the plaintiff properly stated a claim for First

Amendment retaliation, we exercise jurisdiction over both issues. Anderson

v. Valdez, 845 F.3d 580, 588–89 (5th Cir. 2016).

2

The amended complaint asserts Hall, Bridges, and Jimerson were “acting

individually . . . as well as in their official positions with the School District” in terminating

Hawkland; the defendants’ brief states these three were sued in their “individual and

official capacities.” Any claims against Hall, Bridges, and Jimerson in their official

capacities are duplicative of the claim against the District itself. See Rayborn v. Bossier Par.

Sch. Bd., 881 F.3d 409, 417 (5th Cir. 2018) (“[S]uits against officials in their official

capacities ‘generally represent only another way of pleading an action against an entity of

which an officer is an agent.’” (quoting Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)).

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No. 20-10901

Hawkland contests our jurisdiction to consider whether he adequately

pled a retaliation claim. He maintains that the contextual aspects of his

speech (i.e., whether the statements were “within the scope of his job”) are

disputes of fact. But this mistakes the nature of our review. When a denial

of qualified immunity is appealed, “we are restricted to determinations of

questions of law and legal issues, and we do not consider the correctness of

the plaintiff’s version of the facts.” Club Retro, 568 F.3d at 194 (citation

omitted). While we thus accept all of Hawkland’s well-pled factual

allegations as true and draw all reasonable inferences in his favor,

determining whether he spoke as an employee or as a citizen is a reviewable

question of law. See, e.g., Graziosi v. City of Greenville, 775 F.3d 731, 736 (5th

Cir. 2015).

We consider de novo the sufficiency of both Hawkland’s First

Amendment retaliation claim and defendants’ assertion of qualified

immunity. Anderson, 845 F.3d at 589. With respect to the former, a pleading

must contain “a short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. Proc. 8(a)(2); see Arnold v.

Williams, 979 F.3d 262, 267 (5th Cir. 2020) (“Section 1983 claims

implicating qualified immunity are subject to the same Rule 8 pleading

standard set forth in Twombly and Iqbal as all other claims . . . .”). In other

words, Hawkland’s complaint “must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and

citation omitted). Facial plausibility requires he plead “factual content that

allows the court to draw the reasonable inference that the defendant[s are]

liable for the misconduct alleged.” Id.

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III.

We first address whether Hawkland sufficiently alleged a § 1983 claim

against Hall, Bridges, and Jimerson for First Amendment employment

retaliation. If he failed to do so, we need not further address the defendants’

invocation of qualified immunity. After all, to overcome a qualified immunity

defense, a plaintiff must plead facts showing “(1) that the official violated a

statutory or constitutional right, and (2) that the right was clearly established

at the time of the challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735

(2011) (internal quotation marks and citation omitted). Some opinions, as

well as defendants’ brief, discuss First Amendment retaliation claims under

prong one of the qualified immunity analysis. See, e.g., Rayborn, 881 F.3d at

417–18. For analytic clarity, we separate the two issues, even if the analysis

leads substantively to the same end. See Anderson, 845 F.3d at 590 (assessing

the elements of a § 1983 claim for employment retaliation before discussing

qualified immunity); Howell v. Town of Ball, 827 F.3d 515, 522 (5th Cir. 2016)

(same).

A.

“To succeed in a First Amendment retaliation claim under § 1983, a

public employee must show: (1) he suffered an adverse employment action;

(2) he spoke as a citizen on a matter of public concern; (3) his interest in the

speech outweighs the government’s interest in the efficient provision of

public services; and (4) the speech precipitated the adverse employment

action.” Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015) (internal

quotation marks and citation omitted). Defendants contest only the second

element, contending Hawkland spoke as an employee—not as a citizen—

during the District’s internal investigation.

The second element of the First Amendment retaliation analysis

encompasses two requirements: an employee must have spoken as a citizen

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No. 20-10901

and that speech must have been on a matter of public concern. The first

requirement is a threshold inquiry into whether an employee was speaking as

a citizen or “pursuant to [the employee’s] official duties.” Garcetti v.

Ceballos, 547 U.S. 410, 421 (2006); see Hurst v. Lee County., 764 F.3d 480,

484 (5th Cir. 2014). If an employee’s speech was made pursuant to his

official duties, he is not entitled to First Amendment protection even if he

spoke on a matter of public concern. Anderson, 845 F.3d at 592; see Howell,

827 at 522–23 (“[I]nstead of asking only if the speech at issue was on a matter

of public concern, a court must first decide whether the plaintiff was speaking

as a citizen disassociated with his public duties.”). Again, defendants do not

dispute Hawkland’s speech pertained to a matter of public concern; they only

challenge whether he spoke as a citizen or employee. So we turn to that

analysis.

In determining whether an employee spoke pursuant to his official

duties, the Supreme Court has emphasized the 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.” Lane v. Franks, 573

U.S. 228, 240 (2014). In Lane, a college administrator testified to a grand

jury, under subpoena, about a financial fraud investigation at his university.

Id. at 232–33. He was fired thereafter, and he brought a § 1983 employment

retaliation claim. Id. at 234. Holding Lane’s grand jury testimony was

protected under the First Amendment, the Supreme Court reasoned “the

mere fact that a citizen’s speech concerns information acquired by virtue of

his public employment does not transform that speech into employee—

rather than citizen—speech.” Id. at 240. Rather, Lane’s speech was made

as a citizen because it fell outside his “ordinary job duties” and originated in

an obligation “to the court and society at large . . . to tell the truth.” Id. at

238.

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Regarding Lane, we have cautioned against a strict interpretation of

the term “ordinary job duties,” insisting the question of whether an

employee’s speech was pursuant to his official duties remains “a practical

inquiry.” Culbertson v. Lykos, 790 F.3d 608, 620 (5th Cir. 2015); Anderson,

845 F.3d at 596; see Gibson v. Kilpatrick, 773 F.3d 661, 667–68 (5th Cir. 2014)

(noting Lane presented “no occasion for the Court to refine the standard for

determining when an employee speaks pursuant to his official duties”). To

that end, we consider a number of factors to determine whether an

employee’s speech was made pursuant to, and was ordinarily within, his

official duties.

First, while an employee’s job description is relevant, it is not

dispositive; we look to it insofar as it is “instructive” in the analysis. Gibson,

773 F.3d at 671. More importantly, if the employer directed the employee’s

speech, and the employer was entitled to exercise such control, then it was

likely made pursuant to the employee’s official duties. Anderson, 845 F.3d at

596. We similarly look to whether the speech, even if outside the employer’s

control, was still “intended to serve any purpose of the employer.” Corn v.

Miss. Dep’t of Pub. Safety, 954 F.3d 268, 277 (5th Cir. 2020) (citation

omitted); see Garcetti, 547 U.S. at 421–22 (“Restricting speech that owes its

existence to a public employee’s professional responsibilities does not

infringe any liberties the employee might have enjoyed as a private citizen.”).

While our focus is on the role of the speaker and not the content of the

speech, we will also consider the content if it relates to the employee’s official

duties. See Davis v. McKinney, 518 F.3d 304, 314 (5th Cir. 2008) (comparing

different sections of employee’s internal complaint letter to her official

position and noting “some of [the letter] clearly relates to [her] job as an

internal auditor, other parts do not”). Broader contextual factors include

whether the employee’s speech was made up the internal chain of command

or to an outside actor (such as the media), if the employee spoke to others at

8

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his workplace or kept the information confidential, and whether there is an

analogue to speech by citizens—that is, whether the speech was of the kind

“engaged in by citizens who do not work for the government.” Paske v.

Fitzgerald, 785 F.3d 977, 984 (5th Cir. 2015) (citation omitted); see Gibson,

773 F.3d at 670 (considering chain of command); Howell, 827 F.3d at 524

(“[T]he confidential nature of [plaintiff’s] speech alone suggests that it was

not part of his ‘ordinary’ professional duties.”).

Defendants largely rest their appeal on two cases that they contend

dictate any statements made by an employee during an internal investigation

were made pursuant to the employee’s official duties. See Rodriguez v. City

of Corpus Christi, 687 F. App’x 386 (5th Cir. 2017); Caleb v. Grier, 598 F.

App’x 227 (5th Cir. 2015). Notwithstanding that these are unpublished

opinions, and thus not precedential, we also disagree they stand for such a

categorical proposition. That said, both opinions do concern internal

investigations. In Caleb, we observed that “assisting in an employer’s

investigation into workplace theft is ordinarily within the scope of an

employee’s job duties.” 598 F. App’x at 236. We applied the same reasoning

in Rodriguez, which involved an investigation into a workplace confrontation.

687 F. App’x at 390.

In both cases, however, we recognized multiple factors showing the

plaintiffs acted as employees and not as citizens. Each considered, inter alia,

that the employer directed the plaintiff to participate in the investigation and

the plaintiff limited his or her speech to the chain of command. Caleb, 598 F.

App’x at 236; Rodriguez, 687 F. App’x at 390. Indeed, to hold that an

employee spoke pursuant to official duties solely by virtue of his involvement

in an employer’s internal investigation would unduly treat a single factor as

dispositive. See Tregre, 787 F.3d at 325 (considering multiple factors in

holding plaintiff acted in his official duties as police Chief Deputy when he

was interviewed as part of an internal investigation).

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No. 20-10901

B.

Applying this discussion to Hawkland’s complaint, we conclude

Hawkland’s statements during the District’s internal investigation were

made pursuant to his official duties. Granted the subject-matter of the

investigation was perhaps only tangentially related to Hawkland’s work as a

manager of the HVAC system, he still participated upon the directive of his

employer and his speech unequivocally served his employer’s purpose. See

Anderson, 845 F.3d at 596; Corn, 954 F.3d at 277. Hawkland states he was

“forced to cooperate,” but he does not challenge the Superintendent’s

authority to require his participation. Cf. Lane, 573 U.S. at 239

(“[O]bligations as an employee are distinct and independent from the

obligation, as a citizen, to speak the truth. That independent obligation

renders sworn testimony speech as a citizen and sets it apart from speech

made purely in the capacity of an employee.”).

Moreover, Hawkland never expressed his criticisms of Hull to anyone

outside his employment, let alone outside those with whom he spoke during

the investigation. He did not, for instance, attempt to publicize his

complaints, share his opinion publicly, or otherwise discuss the matter with

news media or the greater public. See Williams v. Dall. Indep. Sch. Dist., 480

F.3d 689, 694 n.2 (5th Cir. 2007) (“This is not a case where [plaintiff] wrote

to the local newspaper or school board with his athletic funding concerns.”);

cf. Graziosi, 775 F.3d at 737 (holding police officer’s posts on Facebook, while

off duty and from her home computer, was speech made as a citizen). Indeed,

in the context of Hawkland’s participation in an employer-initiated internal

investigation, it is difficult to imagine a citizen’s comparable speech-related

activity. See Garcetti, 547 U.S. at 422 (“Contrast, for example, the

expressions made by [an employee] whose letter to the newspaper had no

official significance and bore similarities to letters submitted by numerous

citizens every day.”).

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No. 20-10901

In sum, far and away from an independent obligation to our legal

system or society at large, Hawkland’s speech was made in the limited

context of the District’s internal investigation. It originated from his

employer’s request for his cooperation, and it lacked an analogue to speech

normally made by citizens. For these reasons, the district court erred in

holding Hawkland adequately pleaded a First Amendment retaliation claim.

It follows that we need not further address the defendants’ assertion of

qualified immunity.

***

Accordingly, we REVERSE the district court’s denial of defendants’

Rule 12(b)(6) motions to dismiss Hawkland’s § 1983 claims against them.

We REMAND for entry of judgment in favor of Hall, Bridges, and Jimerson

in their individual capacities.

11

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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