Petition for Writ of Certiorari — Michael Sinegal, Petitioner v. Dawn Polk

APPENDIX

i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion in the United States Court of

Appeals for the Fifth Circuit

(March 14, 2018) . . . . . . . . . . . . . App. 1

Appendix B Memorandum and Order in the

United States District Court for the

Eastern District of Texas

(October 11, 2016) . . . . . . . . . . . . App. 7

Appendix C Order Denying Petition for Rehearing

and Petition for Rehearing En Banc in

the United States Court of Appeals

for the Fifth Circuit

(April 30, 2018) . . . . . . . . . . . . . App. 39

App. 1

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41521

[Filed March 14, 2018]

________________________________

DAWN POLK,

)

)

Plaintiff - Appellee

)

)

v.

)

)

MICHAEL SINEGAL,

)

)

Defendant - Appellant

)

________________________________ )

Appeal from the United States District Court

for the Eastern District of Texas

USDC No. 1:15-CV-153

Before HIGGINBOTHAM, JONES, and GRAVES,

Circuit Judges.

PER CURIAM:*

This case occasions review of the district court’s

denial of a motion for summary judgment predicated on

*

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opinion should not be published and is not precedent except under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

App. 2

qualified immunity. Finding no error in the district

court’s analysis, we AFFIRM.

BACKGROUND

In 2009, Michael Sinegal, a county commissioner in

Jefferson County, Texas, hired Dawn Polk as an

administrative assistant.

Three years later, in 2012, Polk informed Sinegal

that she planned to run in the Democratic Primary for

Justice of the Peace. One of Polk’s opponents was the

incumbent, Tom Gillam III. Sinegal initially told Polk

he thought her campaign was a good idea. During a

subsequent meeting in September 2013, however,

Sinegal acted as though Polk had failed to inform him

of her candidacy, complaining, “you don’t know what

type of position you’re putting me in because this man

Gillam is going around telling everybody that I set you

up to run against him.”

Polk campaigned on the basis of her own integrity

and Gillam’s lack thereof. She ultimately lost the

primary and returned to work for Sinegal. Upon her

return, Sinegal called Polk into his office, informing her

that he had spoken with Human Resources and that

Polk’s employment was “not working out.” Sinegal said

that he had informed Human Resources that Polk was

not typing memoranda or giving messages. In fact,

Sinegal alleged that Polk was “not doing anything.”

Polk asked Sinegal why he would lie to Human

Resources and whether he was firing her for

campaigning against Gillam. Sinegal immediately

called another employee into the room to witness the

meeting and told Polk she had two days to find another

job.

App. 3

In March 2015, Polk sued Sinegal and Jefferson

County under 42 U.S.C. § 1983 in state court. The

defendants subsequently removed the case to federal

court. Polk’s amended complaint asserts that Sinegal

and Jefferson County violated the First Amendment by

retaliating against her for speaking out against Gillam.

The defendants moved for summary judgment, arguing

that the County was not liable under Monell and that

Sinegal was entitled to qualified immunity. The district

court granted summary judgment as to the County, but

found that Polk had raised a genuine issue of material

fact as to Sinegal’s qualified immunity. Sinegal timely

appealed that decision.

STANDARD OF REVIEW

“While not a final decision, ‘the denial of a motion

for summary judgment based upon qualified immunity

is a collateral order capable of immediate review.’”

Heaney v. Roberts, 846 F.3d 795, 800 (5th Cir. 2017)

(quoting Kinney v. Weaver, 367 F.3d 337, 346 (5th Cir.

2004) (en banc)). However, in doing so, we have limited

appellate jurisdiction.

A district court denying an official’s motion for

summary judgment predicated on qualified immunity

“can be thought of as making two distinct

determinations.” Kinney, 367 F.3d at 346. First, the

district court determines whether “a certain course of

conduct would, as a matter of law, be objectively

unreasonable in light of clearly established law.” Id.

Second, the district court determines whether “a

genuine issue of fact exists regarding whether the

defendant(s) did, in fact, engage in such conduct.” Id.

This court only has jurisdiction to review the first type

of determination. Id. at 346-47.

App. 4

Because we have no jurisdiction to consider the

correctness of the plaintiff’s version of the facts, the

appealing defendant must “be prepared to concede the

best view of the facts to the plaintiff and discuss only

the legal issues raised by the appeal.” Winfrey v. Pikett,

872 F.3d 640, 644 (5th Cir. 2017) (citations omitted). So

limited, this court reviews the district court’s analysis

de novo. Id.

DISCUSSION

Sinegal argues that Polk’s allegations are, as a

matter of law, insufficient. In addition, Sinegal asserts

that the district court defined “clearly established law”

at too high a level of generality. Neither argument has

merit.

To establish a claim of First Amendment

retaliation, Polk must show that: (1) she “suffered an

adverse employment decision;” (2) her “speech involved

a matter of public concern;” (3) her interest in speaking

“outweighed the defendant’s interest in promoting

efficiency;” and (4) her speech was a “substantial or

motivating factor” behind the adverse employment

decision. See James v. Texas Collin Cnty., 535 F.3d 365,

375-76 (5th Cir. 2008).

App. 5

Only the fourth element is in dispute.1 As the

district court noted, “Polk alleges that her decision to

run for office caused altercations between Sinegal and

Gillam, which ultimately resulted in Sinegal’s decision

to terminate Polk’s employment.” The court found that

Polk had raised a genuine issue of fact for those

allegations by proffering evidence that Sinegal used the

allegations of poor work performance “as excuses to

mask” his true motive in firing Polk. The only question

for our consideration is whether such conduct, if

proven, would be objectively unreasonable in light of

clearly established law. See Kinney, 367 F.3d at 346.

We agree with the district court that it would.

“This court has been unequivocal in its recognition

of a First Amendment interest in candidacy.” Phillips

v. City of Dallas, 781 F.3d 772, 778 (5th Cir. 2015). We

have recognized that right in the public employment

context since at least 1992. See Click v. Copeland, 970

F.2d 106, 112 (5th Cir. 1992). Applying that clearly

established precedent to this case, we agree with the

district court that “if Polk’s version [of the facts] is

accurate, and Sinegal is using [poor work evaluations]

as excuses to mask his unconstitutional conduct, then

qualified immunity is unavailable.”

1

Sinegal disputes the district court’s conclusion that he was not

contesting the third element of Polk’s retaliation claim. As

evidence that he disputed this element, Sinegal states that his

summary judgment motion explained that he fired Polk because

she was “inefficient.” This argument misunderstands the third

element, which involves interest balancing under Pickering v.

Board of Education, 391 U.S. 563 (1968). Sinegal never argues that

an interest in governmental efficiency outweighed Polk’s interest

in engaging in political speech; indeed, he argues that Polk’s

termination was unrelated to her political speech.

App. 6

CONCLUSION

There is no question that Sinegal disputes that

Polk’s candidacy was the motivating factor in

terminating her employment. However, we are limited

to determining only whether the conduct identified by

the district court would, as a matter of law, be

objectively unreasonable in light of clearly established

law, if true. Finding that it would, we AFFIRM on that

limited ground.

App. 7

APPENDIX B

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF TEXAS

CIVIL ACTION NO. 1:15-CV-153

[Filed October 11, 2016]

___________________________________

DAWN POLK,

)

)

Plaintiff,

)

versus

)

)

JEFFERSON COUNTY, TEXAS, and )

MICHAEL SINEGAL,

)

)

Defendants.

)

___________________________________ )

MEMORANDUM AND ORDER

Pending before the court is Defendants Jefferson

County, Texas (“the County”), and Michael Sinegal’s

(“Sinegal”) (collectively, “Defendants”) Motion for

Summary Judgment (#51) in which Defendants seek

summary judgment on all claims asserted by Plaintiff

Dawn Polk (“Polk”).1 Having considered the pending

1

The County joined in the motion under protest that it should no

longer be a party to the case based on Polk’s omission of the

County’s name from the style of the case in her First Amended

Complaint (#15) as well as the court’s order (#31) in which the

claims against Sinegal in his official capacity were dismissed.

App. 8

motion, the submissions of the parties, the pleadings,

and the applicable law, the court is of the opinion that

summary judgment is warranted with respect to the

claim against the County. Summary judgment is

inappropriate, however, with respect to the claims

against Sinegal.

I. Background

Polk began working for the County in 1996, when

she was hired as a part-time clerk in the Juvenile

Justice Center. In 2002, she transferred to the

Jefferson County Justice of the Peace Court for

Precinct 2, where she served as Court Clerk.

Thereafter, in 2009, she moved to County Road and

Bridges Precinct 3 (“Precinct 3”), where she served as

an administrative secretary to Sinegal, the County

Commissioner of Precinct 3. Sinegal, as County

Commissioner, is an elected official and a member of

the County Commissioners Court.

Polk’s First Amended Complaint, however, clearly states that the

claims against Sinegal are being asserted against him individually

and “as Jefferson County.” As discussed in the court’s previous

Memorandum and Order (#31), “a suit against a public servant ‘in

his official capacity’ imposes liability on the entity that he

represents . . . .” Brandon v. Holt, 469 U.S. 464, 471-72 (1985).

Thus, the court dismissed the claims against Sinegal in his official

capacity because they were duplicative of the claims against the

County, the entity for which he serves as a commissioner. Further,

this issue was already resolved by the court’s order (#40) granting

Sinegal’s Motion for Clarification (#35) in which the court clarified

that Polk’s claims under 42 U.S.C. § 1983 remained pending

against Sinegal, in his individual capacity, and against the County.

Accordingly, the County is a proper party to this case.

App. 9

In 2013, Polk decided to run for Justice of the Peace

for Jefferson County Precinct 8 (“Precinct 8”) in the

November 2014 election. Polk had four opponents in

the Democratic Primary, one of whom was Tom Gillam

III (“Gillam”), the incumbent. Polk conferred with

Sinegal about her plans to run for office in January

2013, and, according to Polk, he told her that it was a

good idea. In September 2013, however, Sinegal called

Polk into his office to question why she had not told

him that she was running. When Polk reminded him

of their conversation in January, Sinegal denied his

alleged comments and told Polk that Gillam was “going

around telling people that [Sinegal had] put [Polk] up

to running . . . .” Sinegal also advised Polk that she

would have to follow the rules regarding a county

employee running for office and set up a meeting with

the County’s Human Resources Director, Carey

Erickson (“Erickson”), to review the County’s rules.

Polk attended a meeting with Sinegal and Erickson on

October 17, 2013, during which Erickson explained the

rules to her.

On October 24, 2013, Polk announced her plans to

run in the Democratic Primary.2 She campaigned on

the basis of her integrity and Gillam’s lack thereof.3

Thus, Polk’s campaign involved negative speech about

2

There were no Republican candidates running for Justice of the

Peace for Precinct 8. Therefore, the victor of the Democratic

Primary election would run unopposed in the November general

election.

3

According to Polk, Gillam was “considered to be particularly

vulnerable because of his rumored, numerous sexual encounters,

even with a purported juvenile, while Justice of the Peace.”

App. 10

an elected official. The Democratic Primary election

was held on March 4, 2014. Ultimately, Polk lost the

election to Gillam. Polk returned to work on March 10,

2014, resuming her duties as Sinegal’s administrative

secretary. During her first week back, Sinegal was out

of the office on vacation. Two days after his return, on

the morning of March 19, Sinegal called Polk into his

office to inform her that he had spoken with Human

Resources and that “things were not working out

between them because she was ‘missing calls, not

typing memorandums, and not giving him his calls.’”

Polk questioned Sinegal “as to why he would tell

Human Resources falsehoods” and inquired if she was

being terminated because she ran against Gillam in the

election. In response, Sinegal called in another

employee to be a witness to the meeting and informed

Polk that she “had two days to find a job in Jefferson

County, but as of Friday, March 21, 2014, Polk would

no longer be employed at Precinct 3.” Polk asserts that

she was never written up for unprofessionalism or

inadequate job performance during her five-year tenure

with Precinct 3 and that she never received notice from

Sinegal that her job performance was poor, inadequate,

or unsatisfactory. After her termination, however,

Sinegal went back through his calendar and added

entries showing the days in which Polk had allegedly

behaved in an unprofessional manner and did not

perform her duties.4

Polk filed suit against Sinegal and the County on

March 4, 2015, in the 60th Judicial District of Jefferson

County, Texas. Defendants removed the action to this

4

Previously, managing Sinegal’s calendar had been part of Polk’s

duties.

App. 11

court on April 14, 2015, and Polk amended her

complaint on August 27, 2015. In her amended

complaint (#15), Polk asserts that Sinegal and the

County infringed upon Polk’s rights under the First

Amendment to the United States Constitution by

terminating her for engaging in protected speech.5

Specifically, Polk alleges that she was terminated for

speaking out against Gillam and opposing him in the

election for Justice of the Peace. Defendants filed the

instant motion on June 14, 2016, asserting that Polk

failed to raise a genuine issue of material fact

regarding: (1) an official county policy; (2) Sinegal’s

status as a policymaker; and (3) a violation of a

constitutional right. Thus, Defendants argue, the

County cannot be held liable. Additionally, Defendants

contend that Sinegal is entitled to qualified immunity.

II. Analysis

A. Summary Judgment Standard

Rule 56(a) of the Federal Rules of Civil Procedure

provides that summary judgment shall be granted “if

the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to

judgment as a matter of law.” FED. R. CIV. P. 56(a);

accord Hefren v. McDermott, Inc., 820 F.3d 767, 771

(5th Cir. 2016). The parties seeking summary judgment

bear the initial burden of informing the court of the

basis for their motion and identifying those portions of

5

Additionally, Polk asserted a claim under the Fourteenth

Amendment for deprivation of a protected interest without due

process of law. The court dismissed that claim on January 4, 2016

(#31).

App. 12

the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if

any, which they believe demonstrate the absence of a

genuine issue of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986); Davis v. Fort Bend Cty., 765

F.3d 480, 484 (5th Cir. 2014), cert. denied, 135 S. Ct.

2804 (2015); Tech. Automation Servs. Corp. v. Liberty

Surplus Ins. Corp., 673 F.3d 399, 407 (5th Cir. 2012).

“A fact issue is material if its resolution could affect

the outcome of the action.” Hemphill v. State Farm

Mut. Auto. Ins. Co., 805 F.3d 535, 538 (5th Cir. 2015),

cert. denied, 136 S. Ct. 1715 (2016); Tiblier v. Dlabal,

743 F.3d 1004, 1007 (5th Cir. 2014); accord Poole v.

City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012);

Cooper Tire & Rubber Co. v. Farese, 423 F.3d 446, 454

(5th Cir. 2005). “Factual disputes that are irrelevant

or unnecessary will not be counted.” Tiblier,743 F.3d at

1007 (quoting Anderson v. Liberty Lobby, Inc.,477 U.S.

242, 248 (1986)). “An issue is ‘genuine’ if it is real and

substantial, as opposed to merely formal, pretended, or

a sham.” Hudspeth v. City of Shreveport, 270 F. App’x

332, 334 (5th Cir. 2008) (quoting Bazan ex rel. Bazan v.

Hidalgo Cty., 246 F.3d 481, 489 (5th Cir. 2001)). Thus,

a genuine issue of material fact exists “if the evidence

is such that a reasonable jury could return a verdict for

the nonmoving party.” Hefren, 820 F.3d at 771 (quoting

Anderson, 477 U.S. at 248); Tiblier, 743 F.3d at 1007;

accord Haverda v. Hays Cty., 723 F.3d 586, 591 (5th

Cir. 2013).

Once a proper motion has been made, the

nonmoving party may not rest upon mere allegations or

denials in the pleadings but must present affirmative

evidence, setting forth specific facts, to demonstrate the

App. 13

existence of a genuine issue for trial. Celotex Corp.,

477 U.S. at 322 n.3; see Beard v. Banks, 548 U.S. 521,

529 (2006) (quoting FED. R. CIV. P. 56(e)); Distribuidora

Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738

F.3d 703, 706 (5th Cir. 2013). The court must “review

the record ‘taken as a whole.’” Black v. Pan Am. Labs.,

LLC, 646 F.3d 254, 273 (5th Cir. 2011) (quoting Reeves

v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150

(2000) (quoting Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986))); see City of

Alexandria v. Brown, 740 F.3d 339, 350 (5th Cir. 2014).

The evidence is construed “in favor of the nonmoving

party, but only where there is an actual controversy,

that is, when both parties have submitted evidence of

contradictory facts.” Spring St. Partners-IV, L.P. v.

Lam, 730 F.3d 427, 435 (5th Cir. 2013) (quoting

Boudreaux v. Swift Transp. Co., 402 F.3d 563, 540 (5th

Cir. 2005)). Furthermore, “only reasonable inferences

in favor of the nonmoving party can be drawn from the

evidence.” Mills v. Warner-Lambert Co., 581 F. Supp.

2d 772, 779 (E.D. Tex. 2008) (citing Eastman Kodak Co.

v. Image Tech. Servs., Inc., 504 U.S. 451, 469 n.14

(1992), cert. denied, 523 U.S. 1094 (1998)); accord

Cannata v. Catholic Diocese of Austin,700 F.3d 169,

172 (5th Cir. 2012).

“Summary judgment may not be thwarted by

conclusional allegations, unsupported assertions, or

presentation of only a scintilla of evidence.” Hemphill,

805 F.3d at 538 (citing McFaul v. Valenzuela, 684 F.3d

564, 571 (5th Cir. 2012)); see Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 888 (1990); accord Stauffer v.

Gearhart, 741 F.3d 574, 581 (5th Cir. 2014); Firman v.

Life Ins. Co. of N. Am., 684 F.3d 533, 538 (5th Cir.

2012). Thus, summary judgment is mandated if the

App. 14

nonmovant fails to make a showing sufficient to

establish the existence of an element essential to her

case on which she bears the burden of proof at trial.

Nebraska v. Wyoming, 507 U.S. 584, 590 (1993); Celotex

Corp., 477 U.S. at 322; Tiblier, 743 F.3d at 1007; Curtis

v. Anthony, 710 F.3d 587, 594 (5th Cir. 2013). “[W]here

the nonmoving party fails to establish the existence of

an element essential to that party’s case, and on which

that party will bear the burden of proof at trial, no

genuine issue of material fact can exist.” Apache Corp.

v. W&T Offshore, Inc., 626 F.3d 789, 793 (5th Cir.

2010).

B. Section 1983 Claims

The Civil Rights Act of 1871, 42 U.S.C. § 1983,

creates a private right of action for redressing the

violation of federal law by those acting under color of

state law. Dist. Attorney’s Office for Third Judicial

Dist. v. Osborne, 557 U.S. 52, 65 (2009); Inyo Cty. v.

Paiute-Shoshone Indians of the Bishop Cmty., 538 U.S.

701, 708 (2003); Goodman v. Harris Cty., 571 F.3d 388,

394 (5th Cir. 2009), cert. denied, 558 U.S. 1148 (2010).

It provides:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any

State . . . subjects, or causes to be subjected, any

citizen of the United States or other person

within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured

by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in

equity, or other proper proceeding for redress

....

App. 15

42 U.S.C. § 1983; accord Connick v. Thompson, 563

U.S. 51, 60 (2011). “Section 1983 ‘is not itself a source

of substantive rights,’ but merely provides ‘a method

for vindicating federal rights elsewhere conferred.’”

Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting

Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979));

accord Graham v. Connor, 490 U.S. 386, 393-94 (1989);

Sepulvado v. Jindal, 729 F.3d 413, 420 n.17 (5th Cir.

2013), cert. denied, 134 S. Ct. 1789 (2014). Further, a

§ 1983 complainant must support her claim with

specific facts and may not simply rely on conclusory

allegations. Bryant v. Military Dep’t of Miss., 597 F.3d

678, 686 (5th Cir.), cert. denied, 562 U.S. 893 (2010);

Priester v. Lowndes Cty., 354 F.3d 414, 420 (5th Cir.),

cert. denied, 543 U.S. 829 (2004).

Thus, for Polk to recover, she must show that

Defendants deprived her of a right guaranteed by the

Constitution or the laws of the United States. Daniels

v. Williams, 474 U.S. 327, 329-31 (1986); Baker, 443

U.S. at 139. “Section 1983 imposes liability for

violations of rights protected by the Constitution, not

for violations of duties of care arising out of tort law.”

Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir.

2004) (quoting Baker, 443 U.S. at 146); accord Town of

Castle Rock v. Gonzales, 545 U.S. 748, 768 n.15 (2005).

Polk must also prove that the alleged constitutional or

statutory deprivation was intentional or due to

deliberate indifference—not the result of mere

negligence. Farmer v. Brennan, 511 U.S. 825, 835

(1994); Davidson v. Cannon, 474 U.S. 344, 348 (1986);

Daniels, 474 U.S. at 328.

App. 16

C. Local Government Liability

The Supreme Court of the United States has

expressly held that local governmental entities may be

sued directly under § 1983 where “the action that is

alleged to be unconstitutional implements or executes

a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by that body’s

officers.” Monell v. Dep’t of Soc. Servs., 436 U.S. 658,

690 (1978); see Collins v. City of Harker Heights, 503

U.S. 115, 120-21 (1992); Zarnow v. City of Wichita

Falls, 614 F.3d 161, 166 (5th Cir. 2010), cert. denied,

564 U.S. 1038 (2011); Keenan v. Tejeda, 290 F.3d 252,

262 (5th Cir. 2002). For § 1983 liability to attach, a

plaintiff must demonstrate three elements:

“a

policymaker; an official policy; and a violation of

constitutional rights whose ‘moving force’ is the policy

or custom.” Culbertson v. Lykos, 790 F.3d 608, 628 (5th

Cir. 2015) (quoting Piotrowski v. City of Houston, 237

F.3d 567, 578 (5th Cir.), cert. denied, 524 U.S. 820

(2001)); Cox v. City of Dallas, 430 F.3d 734, 748 (5th

Cir. 2005), cert. denied, 547 U.S. 1130 (2006); accord

Zarnow, 614 F.3d at 166. “[T]he unconstitutional

conduct must be directly attributable to the

municipality through some sort of official action or

imprimatur.” Culbertson, 790 F.3d at 628 (quoting

Piotrowski, 237 F.3d at 578); accord James v. Harris

Cty., 577 F.3d 612, 617 (5th Cir. 2009), cert. denied, 558

U.S. 1114 (2010); Rivera v. Houston Indep. Sch. Dist.,

349 F.3d 244, 247 (5th Cir. 2003). Moreover, when

proceeding under § 1983, “each and any policy which

allegedly caused constitutional violations must be

specifically identified by [the] plaintiff . . . .” Piotrowski,

237 F.3d at 579. Therefore, to prevail under § 1983,

Polk must point to more than the isolated

App. 17

unconstitutional actions of a county employee; instead,

she “must identify a policymaker with final

policymaking authority and a policy that is the ‘moving

force’ behind the alleged constitutional violation.”

Rivera, 349 F.3d at 247 (quoting Piotrowski, 237 F.3d

at 578).

A “policy” can be shown three different ways. The

first type of “policy” is characterized by formal rules

and understandings which constitute fixed plans of

action to be followed under similar circumstances

consistently and over time. See Pembaur v. City of

Cincinnati, 475 U.S. 469, 480-81 (1986); accord

Gonzalez v. Ysleta Indep. Sch. Dist., 996 F.2d 745, 754

(5th Cir. 1993). The second type of “policy” arises from

custom, i.e., “conduct that has become a traditional way

of carrying out policy and has acquired the force of

law.” Bennett v. City of Slidell, 728 F.2d 762, 768 (5th

Cir. 1984), cert. denied, 472 U.S. 1016 (1985). The

third type of “policy” stems from a policymaker’s

“adoption of a course of action ‘tailored to a particular

situation and not intended to control decisions in later

situations.’” Bd. of Cty. Comm’rs of Bryan Cty. v.

Brown, 520 U.S. 397, 406 (1997) (quoting Pembaur, 475

U.S. at 481); accord In re Faust, 310 F.3d 849, 862 (5th

Cir. 2002).

Polk has not identified a specific set of rules

constituting a “policy” of Jefferson County that was

applied in this situation. Further, she does not argue

that she was fired pursuant to a “custom” that has

become the force of law in Jefferson County. Rather,

Polk appears to rely on the third type of “policy”—a

single action by a policymaker. Certainly, “a single

decision by a policy maker may, under certain

App. 18

circumstances, constitute a policy for which the county

may be liable.” Brown v. Bryan Cty., 219 F.3d 450, 457

(5th Cir. 2000), cert. denied, 532 U.S. 1007 (2001);

accord Gelin v. Hous. Auth. of New Orleans, 456 F.3d

525, 527 (5th Cir. 2006); Woodard v. Andrus, 419 F.3d

348, 352 (5th Cir. 2005). Under this type of “policy,”

however, a local government can be liable only if the

decision to adopt that particular course of action was

properly made by that government’s authorized

policymakers. See Brown, 219 F.3d at 462; accord

Woodard, 419 F.3d at 352. Thus, this “policy” exists

“only under the ‘extremely narrow’ circumstance that

the decision maker was also a ‘final policymaker.’”

Turay v. Harris Cty., No. H-09-0193, 2011 WL 841510,

at *8 (S.D. Tex. Feb. 17, 2011) (citations omitted).

Furthermore, a governmental entity may not be

held liable for the acts of its employees under a theory

of respondeat superior. Monell, 436 U.S. at 694;

Goudeau v. E. Baton Rouge Paris Sch. Bd., 540 F.

App’x 429, 437-38 (5th Cir. 2013); Okon v. Harris Cty.

Hosp. Dist., 426 F. App’x 312, 216 (5th Cir. 2011).

Municipalities “are not vicariously liable under § 1983

for their employees’ actions.” Connick, 563 U.S. at 60.

Thus, proof of a responsible policymaker is a necessary

element for the imposition of municipal liability under

§ 1983. Id. at 60-61; Piotrowski, 237 F.3d at 579 (citing

Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737

(1989)); see Johnson v. Deep E. Tex. Reg’l Narcotics

Trafficking Task Force, 379 F.3d 293, 309 (5th Cir.

2004). State law determines whether a particular

individual is a final policymaker of a governmental

entity with respect to a certain sphere of activity.

McMillian v. Monroe Cty., 520 U.S. 781, 786 (1997);

Culbertson, 790 F.3d at 624.

App. 19

“Where liability is based upon a single decision by

an official, ‘[a] court’s task is to identify those officials

or governmental bodies who speak with final

policymaking authority for the local governmental

actor concerning the action alleged to have caused

the particular constitutional . . . violation at issue.’”

Gelin, 456 F.3d at 527 (quoting McMillian, 520 U.S. at

784-85); accord Brady v. Fort Bend Cty., 145 F.3d 691,

698 (5th Cir. 1998) (quoting Pembaur, 475 U.S. at 484),

cert. denied, 525 U.S. 1105 (1999). Only officials

“responsible under state law for making policy in that

area” of the county’s business can subject the

municipality to § 1983 liability. Harris Cty. v. Nagel,

349 S.W.3d 769, 790 (Tex. App.—Houston [14th Dist.]

2011, pet. denied) (emphasis in original) (citations

omitted), cert. denied, 134 S. Ct. 117 (2013).

Policymaking, however, “is more than discretion, and

it is far more than the final say-so . . . .” Rhode v.

Denson, 776 F.2d 107, 110 (5th Cir. 1985) (quoting

Bennett, 728 F.2d at 769), cert. denied, 476 U.S. 1170

(1986). Thus, “[t]he fact that a particular official—even

a policymaking official—has discretion in the exercise

of a particular function does not, without more, give

rise to municipal liability based on an exercise of that

discretion. The official must also be responsible for

establishing final government policy respecting such

activity before the municipality can be held liable.”

Brady, 145 F.3d at 699; accord Pembaur, 475 U.S. at

481; City of St. Louis v. Praprotnik, 485 U.S. 112, 126

(1987) (“If the mere exercise of discretion by an

employee could give rise to a constitutional violation,

the result would be indistinguishable from respondeat

superior liability.”).

App. 20

Indeed, the United States Court of Appeals for the

Fifth Circuit has recognized as fundamental the

distinction between “final decisionmaking authority”

and “final policymaking authority.” Bolton v. City of

Dallas, 541 F.3d 545, 548-49 (5th Cir. 2008) (per

curiam) (citing Jett, 7 F.3d at 1247), cert. denied, 556

U.S. 1152 (2009). A final policymaker is one “whose

acts or edicts may fairly be said to represent official

policy . . . .” Pembaur, 475 U.S. at 480 (quoting Monell,

436 U.S. at 694). A final policymaker has “the

responsibility for making law or setting policy in any

given area of a local government’s business.” Turay,

2011 WL 841510, at *9 (citations omitted); see Nagel,

349 S.W.3d at 792. “[County] policymakers not only

govern conduct; they decide the goals for a particular

[county] function and devise the means of achieving

those goals.” Rhode, 776 F.2d at 110 (quoting Bennett,

728 F.2d at 769). On the other hand, an official whose

discretionary decisions are constrained by policies not

of his own making is instead a decisionmaker.

Praprotnik, 485 U.S. at 127; Gelin, 456 F.3d at 528;

Jett, 7 F.3d at 1247.

In Pembaur, the Supreme Court of the United

States illustrated this significant distinction in the

following manner:

[F]or example, the County Sheriff may have

discretion to hire and fire employees without

also being the county official responsible for

establishing county employment policy. If this

were the case, the Sheriff’s decisions respecting

employment would not give rise to municipal

liability, although similar decisions with respect

to law enforcement practices, over which the

App. 21

Sheriff is the official policymaker, would give

rise to municipal liability. Instead, if county

employment policy was set by the Board of

County Commissioners, only that body’s

decisions would provide a basis for county

liability. This would be true even if the Board

left the Sheriff discretion to hire and fire

employees and the Sheriff exercised that

discretion in an unconstitutional manner . . . .

475 U.S. at 483 n.12 (emphasis in original); accord

Brady, 145 F.3d at 699; Jett, 7 F.3d at 1247; Turay,

2011 WL 841510, at *9 (“The finality of an

official’s action does not therefore automatically lend

it the character of a policy.”). Thus, a county official

does not become a policymaker simply because he has

the authority to hire and fire employees. See

Praprotnik, 485 U.S. at 129-30 (stating that the case

before the court resembled the hypothetical example in

Pembaur because the Commission left appointing

authorities discretion to hire and fire employees).

Significantly, “[t]hat a particular agent is the apex of a

bureaucracy makes the decision ‘final’ but does not

forge a link between ‘finality’ and ‘policy.’” Gelin, 456

F.3d at 530 (quoting Auriemma v. Rice, 957 F.2d 397,

400 (7th Cir. 1992)).

In this case, Polk claims that Sinegal, as an elected

official of Jefferson County, is a policymaker with

regard to the terms and conditions of employment in

his respective precinct. Conversely, Defendants assert

that the Jefferson County Commissioners Court is the

policymaker for all Jefferson County policy, including

employment policy in each commissioner’s precinct.

Defendants maintain that while Sinegal is able to hire,

App. 22

fire, and discipline persons within his precinct office, he

is nonetheless bound by the policies set forth by the

Commissioners Court. Importantly, Texas courts have

not addressed the issue of whether a county

commissioner is a policymaker in the area of

employment.6

“Under Texas law, the principal organ of county

government is the commissioners court.”7 Nagel, 349

S.W.3d at 794; accord Comm’rs Ct. of Titus Cty. v.

Agan, 940 S.W.2d 77, 79 (Tex. 1997). Article V, section

18, of the Texas Constitution grants commissioners

courts the power “over all county business . . . .” TEX.

CONST. art. V, § 18. With regard to employment,

commissioners courts establish elected officers’ budgets

and determine the number of appointments they can

make. TEX. LOC. GOV’T CODE §§ 151.001(a), 151.002,

151.901. A commissioners court cannot, however,

“attempt to influence the appointment of any person to

an employee position . . . .” TEX. LOC. GOV’T CODE

§ 151.004. Rather, “[a]n elected county officer, despite

the commissioners court’s control over the officer’s

budget, is free to select assistants of his or her ‘own

6

In fact, the court was unable to find any case regarding a

commissioner’s status as a policymaker in any area of county

business. Rather, Texas law makes clear that, generally, a

commissioner cannot bind the county by his conduct. Hill Farm,

Inc. v. Hill Cty., 436 S.W.2d 320, 324 (Tex. 1969); Canales v.

Laughlin, 214 S.W.2d 451, 455 (Tex. 1948) (“[T]he individual

commissioners have no authority to bind the county by their

separate action.”).

7

The Jefferson County Commissioners Court consists of four

commissioners, one from each precinct within the County, and the

county judge. TEX. LOC. GOV’T CODE § 81.001.

App. 23

choice.’” Tex. Att’y Gen. Op. No. GA-0037 (2003) (citing

Abbott v. Pollock, 946 S.W.2d 513, 517 (Tex.

App.—Austin 1997, writ denied)). In other words, a

commissioner has the authority to make decisions

regarding whom he hires. When it comes to enacting

policies, however, Attorney General Opinions indicate

that commissioners courts retain the power to make

employment policy with respect to the employees of

county commissioners.8 Tex. Att’y Gen. Op. No.

GA-0656 (2008) (citing Garcia v. Reeves Cty., 32 F.3d

200, 203 (5th Cir. 1994)); Tex. Att’y Gen. Op. No.

JM-521. Polk has not cited any authority to the

contrary.

In an attempt to demonstrate that Sinegal is a

policymaker, Polk relies almost exclusively on two

8

This is consistent with the manner in which county policymaking

authority exists in other states. See LaVerdure v. Cty. of

Montgomery, 324 F.3d 123, 125-26 (3d Cir. 2003) (“It is undisputed

that only a majority of the three-member Board [of

Commissioners] is authorized to establish policy on behalf of the

county.”); Blue v. Miami-Dade Cty., No. 10-23599-CV, 2011 WL

1099263, at *3-4 (S.D. Fla. Mar. 22, 2011) (holding that “final

policymaking authority for Miami-Dade County resides in the

Board of County Commissioners or the County Manager.”); Reuss

v. Henry Cty., No. 1:02-CV-2000-JEC, 2008 WL 4426127, at *10

(N.D. Ga. Sept. 30, 2008) (citing Campbell v. Rainbow City, Ala.,

434 F.3d 1306, 1313 (11th Cir.), cert. denied, 549 U.S. 1020 (2006);

Mason v. Village of El Portal, 240 F.3d 1337, 1339 (11th Cir.

2001)); Stewart v. Bd. of Comm’rs for Shawnee Cty., 320 F. Supp.

2d 1143, 1152 (D. Kan. 2004) (“Kansas law places final authority

over county personnel decisions in the elected board of county

commissioners.”).

App. 24

stipulations from unrelated cases.9 First, Polk points

the court to Ha Penny Nguyen v. Jefferson County, a

Texas state court case in which a clerk who worked for

Justice of the Peace Gillam sued the County for

terminating her employment in retaliation for her

exercise of free speech. No. B-177,132 (60th Dist. Ct.,

Jefferson Cty., Tex. Jan. 22, 2013). In that case, the

parties entered into a stipulation that Gillam was the

policymaker for the County in the matters of personnel

decisions in his precinct.10 Id. Second, Polk points to

9

Polk also cites deposition testimony from two other unrelated

cases. In Bowden v. Jefferson County, a case previously before this

court, Nick Saleme, Jr. (“Saleme”), a county constable, testified

that, as an elected official, he was the final authority for hiring

decisions in his office. No. 1:14-CV-287 (E.D. Tex. Nov. 6, 2015).

Erickson, the Human Resources Director, corroborated this

testimony. Id. Nevertheless, the court held that Saleme was not

a policymaker in the area of employment. Id. Thus, Polk

completely mischaracterizes the significance of this testimony.

Polk also points to Harris v. Jefferson County, a state court case

involving another justice of the peace who acknowledged, at

deposition, that he had the authority to hire and fire within his

department. No. A196,540 (58th Dist. Ct., Jefferson Cty., Tex.

Nov. 27, 2013). Both of these cases involve testimonial admissions

that the relevant county official was a decisionmaker, not a

policymaker. As discussed above, an individual with

decisionmaking authority is not necessarily a policymaker. Bolton,

541 F.3d at 548-49; Jett, 7 F.3d at 1247. In any event, even if the

county officials had admitted to being “policymakers,” such

admissions would not be controlling on the court’s determination

on whether, as a matter of law, they were in fact policymakers.

Frank v. Harris Cty., 118 F. App’x 799, 802 (5th Cir. 2005).

10

The stipulation provided as follows: “At all times material hereto

Tom Gillam, serving as Justice of the Peace Precinct 8 for

Jefferson County is and has been respectively the final authority

and or ‘policymaker’ for Jefferson County in the matters of

App. 25

Davis v. Jefferson County, another Texas state court

case in which the County stipulated that a purchasing

agent “was at all times during his tenure as the

purchasing agent for Jefferson County a policymaker

and final authority for personnel decisions that were

made by him with regard to his office.” No. B-182,252

(60th Dist. Ct., Jefferson Cty., Tex. June 19, 2013).

These stipulations, however, are not binding in this

case because, inter alia, they concerned a justice of the

peace and a purchasing agent, not a county

commissioner, and did not pertain to the individuals

involved in the case at bar.11 In both instances, the

personnel decisions in the Justice of the Peace Precinct 8,

including the decisions to employ persons to serve in budgeted

positions, terminate the employment of persons employed by the

Justice of the Peace Precinct 8 office, promotion and demotion of

persons employed by the Justice of the Peace Precinct 8;

specifically as applied to Penny Nguyen.” (emphasis added).

11

Stipulations can become binding through the court’s application

of the doctrine of judicial estoppel, which prevents a party from

assuming inconsistent positions in litigation. GlobeRanger Corp.

v. Software AG, 27 F. Supp. 3d 723, 743 (N.D. Tex. 2014) (quoting

In re Superior Crewboats, Inc., 374 F.3d 330, 334 (5th Cir. 2004)).

Judicial estoppel, however, is an equitable doctrine, and the

decision whether to invoke it is within the court’s discretion. New

Hampshire v. Maine, 532 U.S. 742, 749 (2001); In re

Knight-Celotex, LLC, 695 F.3d 714, 722 (7th Cir. 2012);

GlobeRanger Corp., 27 F. Supp. 3d at 743 (quoting In re Coastal

Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999)). Further, the

doctrine is limited in that “it may be applied only where the

position of the party to be estopped is clearly inconsistent with its

previous one . . . .” GlobeRanger Corp., 27 F. Supp. 3d at 743 (citing

Ahrens v. Perot Sys. Corp., 205 F.3d 831, 833 (5th Cir. 2000));

accord Hamilton v. State Farm Fire & Cas. Co., 270 F.3d 778, 782

(9th Cir. 2001). Alternatively, stipulations can become binding

App. 26

County expressly limited the stipulations to the specific

case being litigated. The court cannot conclude that by

entering into these limited stipulations in unrelated

cases, the County admitted that all elected officials,

much less county commissioners specifically, are

policymakers in the area of employment.

Polk also offers excerpts from Sinegal’s deposition,

in which he stated that he “had the responsibility for

determining what [Polk’s] duties were” within his

office. At deposition, Sinegal also testified that he has

authority to make disciplinary decisions. Defendants

argue that while Sinegal “is able to hire, fire and

discipline persons within his precinct office, he is still

bound by the Jefferson County policies set forth by the

Commissioners’ Court.” In other words, Defendants

assert that Polk “confuses a policymaker with a

decisionmaker.”

During his deposition, Sinegal

specifically denied being a policymaker. He also stated

that he could make certain decisions “[a]s long as it

under the doctrine of judicial admissions, which also requires the

purported admission to be “inconsistent with or contrary to” its

current statement. GlobeRanger Corp., 27 F. Supp. 3d at 743

(quoting Giddens v. Cmty. Educ. Ctrs., Inc., 540 F. App’x 381,

390-91 (5th Cir. 2013) (citing Davis v. A. G. Edwards & Sons, Inc.,

823 F.2d 105, 107-08 (5th Cir. 1987))). The court finds that the

doctrines of judicial estoppel and judicial admissions are not

applicable in this case because Defendants have not asserted a

position that is “plainly inconsistent” with a previously asserted

position.

App. 27

didn’t violate any county policies or anything in the

county policies . . . .”12 Further, Sinegal testified that

he frequently called Human Resources regarding

applicable county policies to ensure that his decisions

complied with them.

The evidence is simply insufficient to raise a

genuine issue of material fact regarding Sinegal’s

status as a policymaker. At best, the evidence shows

that Sinegal possessed final decisionmaking authority,

but there is no evidence to support the conclusion that

he possessed policymaking authority. Accordingly,

summary judgment is warranted with respect to Polk’s

§ 1983 claim against the County, as she has not

demonstrated that her termination stemmed from the

enforcement of a county policy or custom or that she

was discharged by an authorized policymaker of

Jefferson County.

D. Qualified Immunity

Qualified immunity is available to defendant

officials in suits arising under § 1983 and is an

immunity from suit, extending beyond a defense to

liability to include all aspects of civil litigation,

including discovery. Pearson v. Callahan, 555 U.S.

223, 231 (2009); Hinojosa v. Livingston, 807 F.3d 657,

663 (5th Cir. 2015); McClendon v. City of Columbia,

305 F.3d 314, 323 (5th Cir. 2002), cert. denied, 537 U.S.

1232 (2003). For summary judgment purposes, “a

defendant asserting immunity is not required to

12

One example of a county policy that limits Sinegal’s hiring

authority is the County’s nepotism policy, which prohibits him

from hiring family members to work in his office.

App. 28

establish the defense beyond peradventure, as he

would have to do for other affirmative defenses.”

Cousin v. Small, 325 F.3d 627, 632 (5th Cir.) (quoting

Beck v. Tex. State Bd. of Dental Exam’rs, 204 F.3d 629,

633 (5th Cir.), cert. denied, 531 U.S. 871 (2000)), cert.

denied, 540 U.S. 826 (2003). “It is sufficient that the

movant in good faith pleads that [he] is entitled to

absolute or qualified immunity.” Id.; accord Hathaway

v. Bazany, 507 F.3d 312, 320 (5th Cir. 2007). Where a

defendant pleads qualified immunity and shows he is

a governmental official whose position involves the

exercise of discretion, the plaintiff then has the burden

to rebut this defense by establishing that the official’s

allegedly wrongful conduct violated clearly established

law.” Kovacic v. Villarreal, 628 F.3d 209, 211-12 (5th

Cir. 2010) (quoting Thompson v. Upshur Cty., 245 F.3d

447, 456 (5th Cir. 2001)), cert. denied, 564 U.S. 1004

(2011); Hampton v. Oktibbeha Cty. Sheriff Dep’t, 480

F.3d 358, 363 (5th Cir. 2007); accord Michalik v.

Hermann, 422 F.3d 252, 258 (5th Cir. 2005). As the

Fifth Circuit has explained, “[w]e do not require that

an official demonstrate that he did not violate clearly

established federal rights; our precedent places that

burden upon plaintiffs.” Zarnow v. City of Wichita

Falls, 500 F.3d 401, 407 (5th Cir. 2007) (emphasis

added) (quoting Pierce v. Smith, 117 F.3d 866, 871-72

(5th Cir. 1997)), cert. denied, 564 U.S. 1038 (2011).

“Whether a government official is entitled to

qualified immunity ‘generally turns on the “objective

reasonableness of the action” assessed in light of the

legal rules that were “clearly established” at the time

it was taken.’” Johnston v. City of Houston, 14 F.3d

1056, 1059 (5th Cir. 1994) (quoting Tex. Faculty Ass’n

v. Univ. of Tex. at Dallas, 946 F.2d 379, 389 (5th Cir.

App. 29

1991) (quoting Anderson v. Creighton, 483 U.S. 635,

639 (1987))); see Brosseau v. Haugen, 543 U.S. 194, 198

(2004); Siegert v. Gilley, 500 U.S. 226, 231 (1991);

Stotter v. Univ. of Tex. at San Antonio, 508 F.3d 812,

823 (5th Cir. 2007), cert. denied, 562 U.S. 897 (2010).

In considering a claim of qualified immunity, the court

must utilize a bifurcated approach, asking first

“whether the facts taken in the light most favorable to

the party asserting the injury show the [defendant’s]

conduct violated a federal right;” and second, “whether

the defendant’s behavior was objectively reasonable

under clearly established law at the time the conduct

occurred.” Tolan v. Cotton, ___ U.S. ___, 134 S. Ct.

1861, 1865 (2014) (citing Saucier v. Katz, 533 U.S. 194,

201 (2001)); Hampton, 480 F.3d at 363; accord Machete

Prods., L.L.C. v. Page, 809 F.3d 281, 289 (5th Cir. 2015)

(quoting Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011));

Doe v. Robertson, 751 F.3d 383, 387 (5th Cir. 2014).

“The first prong requires the plaintiff to allege ‘the

deprivation of an actual constitutional [or statutory]

right.’” Hampton, 480 F.3d at 363 (quoting Felton v.

Polles, 315 F.3d 470, 477 (5th Cir. 2002)). The court

must evaluate “whether, taking the facts in the light

most favorable to the plaintiff, the official’s conduct

violated a constitutional right.” Haverda, 723 F.3d at

598 (citing Lytle v. Bexar Cty., 560 F.3d 404, 409-10

(5th Cir. 2009), cert. denied, 559 U.S. 1007 (2010)).

Under the second prong, “a clearly established right is

one that is ‘sufficiently clear that every reasonable

official would have understood that what he is doing

violates that right.’” Mullenix v. Luna, ___ U.S. ___,

136 S. Ct. 305, 308 (2015) (quoting Reichle v. Howards,

132 S. Ct. 2088, 2093 (2012)); see Brosseau, 543 U.S. at

198-99; Wilkerson v. Goodwin, 774 F.3d 845, 851 (5th

App. 30

Cir. 2014). “The salient question is whether the state

of the law at the time of an incident provided fair

warning to the defendants that their alleged conduct

was unconstitutional.” Tolan, 134 S. Ct. at 1866

(quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)). At

the summary judgment stage, qualified immunity is

appropriate where the defendant “shows that there is

no genuine issue as to any material fact and the

[defendant] is entitled to judgment as a matter of law.”

Id.; Hillyer v. TDC, 55 F. App’x 716, 716 (5th Cir.

2002); Blackwell v. Barton, 34 F.3d 298, 301 (5th Cir.

1994). Thus, if resolution of qualified immunity at this

stage turns on what the defendant actually did, rather

than on whether he is immunized from liability, “and

if there are conflicting versions of his conduct, one of

which would establish and the other defeat liability,

the case is inappropriate for summary judgment.”

Haverda, 723 F.3d at 599 (citing Barker v. Norman,

651 F.2d 1107, 1123-24 (5th Cir. 1981)); accord Keenan,

290 F.3d at 262; Thomas v. Jackson, No.

3:14-CV-4530-B-BN, 2016 WL 749558, at *3 (N.D. Tex.

Feb. 5, 2016); Kostic v. Tex. A&M Univ. at Commerce,

11 F. Supp. 3d 699, 715 (N.D. Tex. 2014).

1. Violation of a Constitutional Right

Polk alleges that Sinegal’s actions violated her right

to free speech guaranteed under the First Amendment

to the United States Constitution. See U.S. CONST.

amend. I. To prove a claim of First Amendment

retaliation, a public employee must establish four

elements:

(1)

an adverse employment action;

App. 31

(2)

speech involving a matter of public

concern;

(3)

the employee’s interest in speaking

outweighs the employer’s interest in

efficiency; and

(4)

the speech motivated

employment action.

the

adverse

Culbertson, 790 F.3d at 617; Wilson v. Tregre, 787 F.3d

322, 325 (5th Cir. 2015); Burnside v. Kaelin, 773 F.3d

624, 626 (5th Cir. 2014); Juarez v. Aguilar,666 F.3d

325, 332 (5th Cir. 2011). While the first three of these

elements present questions of law for the court to

decide, the fourth one is a factual issue typically

decided by a jury. Kostic, 11 F. Supp. at 714.

The parties do not dispute the first three elements.

Rather, Defendants argue that Polk “has failed to show

that her running for the office of justice of the peace

was a motivating factor in Sinegal[’s] decision to

terminate her.” In other words, the dispute revolves

around whether Polk’s exercise of her right to free

speech was a motivating factor in her termination.

This issue turns on what Sinegal actually did, rather

than on whether he is immunized from liability. See

Haverda, 723 F.3d at 599; Keenan, 290 F.3d at 262;

Kostic, 11 F. Supp. 3d at 715. In this instance, there

are conflicting versions of his conduct, one of which

would establish and the other defeat liability. On the

one hand, Polk claims that she was fired for

campaigning against Gillam. Polk alleges that her

decision to run for office caused altercations between

Sinegal and Gillam, which ultimately resulted in

Sinegal’s decision to terminate Polk’s employment. In

App. 32

response, Sinegal argues that his decision to terminate

Polk was the result of her poor work performance and

lack of professionalism, not her decision to run for

public office. As proof, Sinegal offers calendar entries

showing numerous occasions on which Polk allegedly

failed to perform her job duties, or did so poorly.

Notably, however, Polk proffers evidence that these

entries were not made until after she was terminated

and after she had filed a complaint against Sinegal.

Clearly, if Sinegal’s version of events is accurate and he

terminated Polk for poor work performance rather than

in retaliation for her exercise of free speech, he would

be entitled to qualified immunity because there would

be no violation of a constitutional right. Conversely, if

Polk’s version is accurate, and Sinegal is using these

events as excuses to mask his unconstitutional conduct,

then qualified immunity is unavailable. Accordingly,

resolution of this prong turns on what Sinegal actually

did, which the court cannot resolve at the summary

judgment stage.

2. Objectively Reasonable Conduct and Clearly

Established Law

Even assuming Sinegal’s conduct violated a

constitutional right, he is still entitled to qualified

immunity if his conduct was “objectively reasonable in

light of ‘clearly established’ law at the time of the

violation.” Kostic, 11 F. Supp. 3d at 723 (quoting Porter

v. Ascension Parish Sch. Bd., 393 F.3d 608, 614 (5th

Cir. 2004), cert. denied, 544 U.S. 1062 (2005)). The

question of whether an officer’s conduct was objectively

reasonable in light of clearly established law is a

matter of law for the court to determine. Goodson v.

City of Corpus Christi, 202 F.3d 730, 736 (5th Cir.

App. 33

2000); accord Swindle v. Livingston Parish Sch. Bd.,

655 F.3d 386, 400-01 (5th Cir. 2011); Kostic, 11 F.

Supp. 3d at 723. “The touchstone of this inquiry is

whether a reasonable person would have believed that

his conduct conformed to the constitutional standard in

light of the information available to him and the clearly

established law.” Goodson, 202 F.3d at 736; accord

Ramirez v. Martinez, 716 F.3d 369, 375 (5th Cir. 2013).

Here, although Polk was an at-will employee and could

be discharged for any legitimate reason or for no reason

at all, “it [is] clearly established that the First

Amendment generally prohibits a public employer from

retaliating against an employee because she exercised

her right to engage in protected speech.” Blackwell v.

Laque, 275 F. App’x 363, 370 (5th Cir. 2008).

Indeed, “[t]he government may not constitutionally

compel persons to relinquish their First Amendment

rights as a condition of public employment.” Beaulieu

v. Lavigne, 539 F. App’x 421, 424 (5th Cir. 2014)

(quoting Harris v. Victoria Indep. Sch. Dist., 168 F.3d

216, 220 (5th Cir.), cert. denied, 528 U.S. 1022 (1999));

Jordan v. Ector Cty., 516 F.3d 290, 294-95 (5th Cir.

2008) (quoting Garcetti v. Ceballos, 547 U.S. 410, 417

(2006)) (“It is now a rote principle of constitutional law

that ‘public employees do not surrender all their First

Amendment rights by reason of their employment.’”).

Thus, Polk has sufficiently demonstrated a

constitutional right that was clearly established at the

time of her termination.

“The second prong ‘focuses not only on the state of

the law at the time of the complained of conduct, but

also on the particulars of the challenged conduct and/or

of the factual setting in which it took place.’” Felton,

315 F.3d at 478 (quoting Pierce, 117 F.3d at 872);

App. 34

accord Mullenix, 136 S. Ct. at 308 (“The dispositive

question is whether the violative nature of particular

conduct is clearly established. This inquiry must be

undertaken in light of the specific context of the case,

not as a broad general proposition.”). “A ‘defendant’s

acts are . . . objectively reasonable unless all reasonable

officials in the defendant’s circumstances would have

then known that the defendant’s conduct violated the

United States Constitution or the federal statute as

alleged by the plaintiff.’” Felton, 315 F.3d at 478

(emphasis in original) (quoting Thompson, 245 F.3d at

457). Hence, to prevail, Polk must show that Sinegal

knew or reasonably should have known that the action

he was taking within his sphere of official

responsibility would violate Polk’s constitutional rights.

See Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982);

Schultea v. Wood, 47 F.3d 1427, 1431-32 (5th Cir.

1995).

Defendants argue that Sinegal acted objectively

reasonably in light of the particular conduct and

specific context of the case. Defendants maintain that

Sinegal had just cause to discharge Polk even though

her termination occurred within days of the election. At

deposition, Sinegal claimed that within her first year,

Polk had an issue with the maintenance supervisor and

his secretary, which caused severe tension within the

office. He also testified that Polk violated county policy

by instructing a maintenance employee to add county

fuel to her personal vehicle. With regard to this

incident, Polk asserts that she had county fuel put in

her personal vehicle because Sinegal asked her to go to

Beaumont for a work function and a county car was not

available. Further, she alleges that the maintenance

superintendent authorized her actions.

App. 35

According to Sinegal, there were times when Polk

did not forward his calls or give him his messages, and

he constantly had to correct her work. For example,

Sinegal contends that he asked Polk to prepare a

biography of him for a Houston magazine that was

writing an article honoring him. While he and his wife

were on vacation, someone from the magazine

reportedly called to tell him that the magazine could

not print the biography because it was full of mistakes.

Sinegal asserts that the biography looked as though

Polk had not proofread it, and he and his wife had to

spend two days of their vacation rewriting it. Sinegal

also claims that Polk was disruptive, sarcastic, had a

bad attitude, and made off-color comments about

members of the public who visited the courthouse.

These allegations are supported by the affidavit of

Deputy Reginald Boykin, Sr. (“Deputy Boykin”), and a

statement from former Sheriff’s Deputy Bradford

Eugene Lowe, Sr. (“Deputy Lowe”). In his affidavit,

Deputy Boykin stated that he witnessed a few

occasions where Polk was insubordinate toward

Sinegal and rude to patrons. Further, Deputy Boykin

stated that when persons whom Polk did not like called

the office, Polk would say she did not feel like being

bothered and would not answer the phone. Deputy

Lowe asserted that he also witnessed Polk being

insubordinate to Sinegal. Specifically, Deputy Lowe

claimed that he witnessed Polk rolling her eyes at

Sinegal and saying negative things about him.

According to Deputy Lowe, Polk’s behavioral issues

began long before she ran for office.

Additionally, Sinegal maintains that he witnessed

Polk behave disrespectfully toward a county probation

officer, Joe Champ (“Champ”), who purportedly refused

App. 36

to return to Sinegal’s office because of Polk’s behavior.

Polk claims that Champ was loud and used “ugly

words” toward her and that Sinegal urged Champ to

continue. She does not, however, deny having behaved

disrespectfully toward Champ.

Rather, she

acknowledges that she and Champ did not get along

and admits to arguing with him. The evidence also

shows that Sinegal received a complaint from Oscar

Dwin (“Dwin”), a constituent, claiming that Polk used

county equipment to unearth personal information

about Dwin. In an affidavit, Dwin stated that Polk

took “a very personal interest” in him, which made him

feel uncomfortable.13 Like Champ, Dwin refused to

return to Sinegal’s office because of Polk. Polk,

however, claims that she always thought she and Dwin

had a pleasant relationship. There is also evidence of

an altercation between Polk and Deputy Kenneth

Gunner (“Deputy Gunner”). At deposition, Polk

testified that Deputy Gunner called her cell phone

while she was on vacation and she did not answer.

When she returned to work, Deputy Gunner “was ugly

to [Polk]” about her not answering his call, so she “got

back” at him and “was ugly to him.”

Sinegal claims that Polk was not doing the job he

expected her to do, so he made the decision to

terminate her in 2012, before she decided to run for

office. Before he had the opportunity to fire her,

however, Polk notified him that she was running for

Justice of the Peace. According to Sinegal, her

performance did not improve after she lost the election,

13

Specifically, Dwin elaborated that after his girlfriend passed

away, Polk “used her authority and influence” to seek autopsy

results before they were given to the decedent’s family.

App. 37

so he terminated her a few days afterward. Sinegal

told Polk that she was discharged because she was not

giving him his messages and was not doing her work.

Polk, however, argues that these reasons are

pretextual because she was never written up,

reprimanded, or otherwise disciplined prior to her

running for office. She maintains that the calendar

entries detailing the events on which she allegedly

displayed poor work performance were all made after

she was terminated and only in anticipation of

litigation. Polk essentially suggests that Sinegal

altered the calendar in bad faith to comport with his

asserted reasons for discharging her. Importantly, at

deposition, Sinegal confirmed that some entries were

indeed made after Polk filed suit. Further, Polk

asserts that Sinegal began gathering statements and

affidavits corroborating his version of events once he

became aware that she had filed a claim with the

EEOC. Thus, there is a genuine issue of material fact

regarding the validity of Sinegal’s calendar entries and

the purported reasons for Polk’s termination. In order

to conclude that Sinegal is entitled to qualified

immunity under the second prong, the court would

have to engage in impermissible credibility

determinations, which, as discussed above, the court

may not do. See Haverda, 723 F.3d at 599; Keenan, 290

F.3d at 262; Kostic, 11 F. Supp. 3d at 715. At this

juncture, the court cannot conclude as a matter of law

that Sinegal’s conduct was objectively reasonable in

light of clearly established law. Hence, summary

judgment on the issue of qualified immunity is not

appropriate.

App. 38

III.

Conclusion

Consistent with the foregoing analysis, Polk

presents no claim against the County that warrants

relief. Nevertheless, Polk has raised a genuine issue of

material fact with regard to Sinegal’s claim to qualified

immunity, which precludes the court from granting

summary judgment in favor of Sinegal. Consequently,

Defendants’ Motion for Summary Judgment is

GRANTED in part and DENIED in part. Polk’s claims

against Sinegal in his individual capacity remain

pending.

SIGNED at Beaumont, Texas, this 11th day of

October, 2016.

s/____________________________________

MARCIA A. CRONE

UNITED STATES DISTRICT JUDGE

App. 39

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 16-41521

[Filed April 30, 2018]

________________________________

DAWN POLK,

)

)

Plaintiff - Appellee

)

)

v.

)

)

MICHAEL SINEGAL,

)

)

Defendant - Appellant

)

________________________________ )

Appeal from the United States District Court

for the Eastern District of Texas

ON PETITION FOR REHEARING EN BANC

(Opinion March 14, 2018, 5 Cir., _____, _____ F.3d _____)

Before HIGGINBOTHAM, JONES, and GRAVES,

Circuit Judges.

PER CURIAM:

(/)

Treating the Petition for Rehearing En Banc as

a Petition for Panel Rehearing, the Petition for

Panel Rehearing is DENIED. No member of the

panel nor judge in regular active service of the

App. 40

court having requested that the court be polled

on Rehearing En Banc (FED. R. APP. P. and 5TH

CIR. R. 35), the Petition for Rehearing En Banc

is DENIED.

()

Treating the Petition for Rehearing En Banc as

a Petition for Panel Rehearing, the Petition for

Panel Rehearing is DENIED. The court having

been polled at the request of one of the members

of the court and a majority of the judges who are

in regular active service and not disqualified not

having voted in favor (FED. R. APP. P. and 5TH

CIR. R. 35), the Petition for Rehearing En Banc

is DENIED.

ENTERED FOR THE COURT:

s/______________________________________

UNITED STATES CIRCUIT JUDGE