# Petition for Writ of Certiorari — City of Dallas v. Kirks > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0849%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1997 - **Citation:** 522 U.S. 816 ## Text ogupreme Court, U.S. (-) FILED \ 961927 JUN 31997 NO. geriee or tHE GLERK In The Supreme Court of the United States October Term, 1996 3 CITY OF DALLAS, TEXAS, WILLARD ROLLINS, RICHARD HATLER, Petitioners, VS. RICHARD KIRKS and JAN FORSYTH, Respondents. + On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Fifth Circuit Sd PETITION FOR WRIT OF CERTIORARI + Crry ATTORNEY OF THE City OF DALLAS Sam A. LINDsAy City Attorney Texas State Bar No. 12368900 JANice S. Moss Assistant City Attorney Texas State Bar No. 14586050 LizBeTH IsLas Assistant City Attorney Texas State Bar No. 00787750 7CN Dallas City Hall 1500 Marilla Street Dallas, Texas 75201 (214) 670-3510 ~— Telephone (214) 670-3515 — Telecopier Attorneys for Petitioners COCKLE LAW BRIEF PRINTING CO., (800) 225-6964 OR CALL COLLECT (402) 342-2831 i QUESTIONS PRESENTED FOR REVIEW I. DOES A LATERAL TRANSFER OF EMPLOYEES, FROM THE DAY SHIFT IN THE INTELLIGENCE DIVI- SION TO THE NIGHT SHIFT IN THE PATROL DIVISION WITH GENUINE RESPONSIBILITIES AND DUTIES IN THE NEW POSITION AND WITH NO REDUCTION IN SALARY, RANK, GRADE, BENEFITS, OR LOSS OF PRO- MOTIONAL OPPORTUNITIES, CONSTITUTE AN ADVERSE EMPLOYMENT ACTION UNDER THE FIRST AMENDMENT? If. IS A PUBLIC OFFICIAL ENTITLED TO QUALIFIED IMMUNITY WHEN HE LATERALLY TRANSFERS EMPLOYEES, BECAUSE OF STATEMENTS MADE BY THE EMPLOYEES AND THE POTENTIAL DISRUPTION IN THE WORKPLACE, FROM THE DAY SHIFT IN THE INTELLIGENCE DIVISION TO THE NIGHT SHIFT IN THE PATROL DIVISION WITH GENUINE RESPON- SIBILITIES AND DUTIES IN THE NEW POSITION AND WITH NO REDUCTION IN SALARY, RANK, GRADE, BENEFITS, OR LOSS OF PROMOTIONAL OPPOR- TUNITIES? Ill. IS A SPEAKER’S MOTIVATION OR INTEREST IN “SPEAKING OUT” A DETERMINATIVE FACTOR IN DECIDING WHETHER THE SPEECH ADDRESSES A MATTER OF PUBLIC CONCERN? IV. DOES THE PICKERING BALANCE REQUIRE A SHOWING OF ACTUAL DISRUPTION RATHER THAN A SHOWING OF A POTENTIAL DISRUPTION OF, OR ii QUESTIONS PRESENTED FOR REVIEW - Continued LIKELY INTERFERENCE WITH, THE EFFICIENCY OF THE WORKPLACE BEFORE THE EMPLOYER MAY TAKE EMPLOYMENT ACTION? V. CAN A MUNICIPALITY BE HELD LIABLE UNDER 42 U.S.C. § 1983 IF THE DISTRICT COURT HELD THAT NO INDIVIDUAL DEFENDANT WAS A POLICY- MAKER, AND RESPONDENTS FAILED TO ESTABLISH THAT THE CITY HAD A POLICY OR CUSTOM OF RETALIATION AGAINST EMPLOYEES WHO REPORT ALLEGED VIOLATIONS OF LAW? VI. SHOULD THE ISSUE OF PUNITIVE DAMAGES UNDER BOTH 42 U.S.C. § 1983 AND THE TEXAS WHIS- TLEBLOWER ACT HAVE BEEN SUBMITTED TO THE JURY ABSENT A SHOWING OF MALICIOUS INTENT OR RECKLESS DISREGARD, AND, ALTERNATIVELY, WAS THE AWARD OF PUNITIVE DAMAGES GROSSLY EXCESSIVE AND UNREASONABLE? Vil. DID THE TEXAS WHISTLEBLOWER ACT PRO- VIDE FOR LIABILITY IN 1989 IF THE ALLEGED DIS- CRIMINATION WAS BASED ON A LATERAL TRANSFER, FROM THE DAY SHIFT IN THE INTEL- LIGENCE DIVISION TO THE NIGHT SHIFT IN THE PATROL DIVISION WITH GENUINE RESPONSIBILITIES AND DUTIES IN THE NEW POSITION AND WITH NO REDUCTION IN SALARY, RANK, GRADE, BENEFITS, OR LOSS OF PROMOTIONAL OPPORTUNITIES, AND IF THE REPORT OF ALLEGED VIOLATION OF LAW WAS NOT THE REASON FOR THE LATERAL TRANS- FER? iii PARTIES TO THIS PROCEEDING The parties to this proceeding are as follows: City of Dallas Defendant-Petitioner Willard Rollins Defendant-Petitioner Richard Hatler Defendant-Petitioner Mack Vines Defendant Only Jan Forsyth Plaintiff-Respondent Richard Kirks Plaintiff-Respondent iv TABLE OF CONTENTS QUESTIONS PRESENTED FOR REVIEW ........... PARTIES TO THIS PROCEEDING.................. TABLE OF CONTENTS 0.2 .cccccccccccccensndvccens TABLE GP AUT eee eee osc ccc cccccvesncesconeves CITATIONS OF OFFICIAL AND UNOFFICIAL PEP CNG oo kc on Sabin ds solver ves tadusecess STATEMENT OF JURISDICTION................... CONSTITUTIONAL PROVISIONS AND STATUTES... STATIGRITT Ge TET Coe win 6 i os nics cise sevessss. ae gg Be ROP ere rer ee eT Ter 2. Basis of Federal Jurisdiction in Court of | Serre rere Corer ARGUMENT AND AUTHORITIES REASONS RELIED ON FOR ALLOWANCE OF THE WEERED 6 4cn ne dee cans menede coe seaces hep mbie eens I. A LATERAL TRANSFER OF EMPLOYEES, FROM THE DAY SHIFT IN THE INTEL- LIGENCE DIVISION TO THE NIGHT SHIFT IN THE PATROL DIVISION WITH GENUINE RESPONSIBILITIES AND DUTIES IN THE NEW POSITION AND WITH NO REDUCTION IN SALARY, RANK, GRADE, BENEFITS, OR LOSS OF PROMOTIONAL OPPORTUNITIES, DOES NOT AS A MATTER OF LAW CONSTI- TUTE AN ADVERSE EMPLOYMENT ACTION UNDER THE FIRST AMENDMENT........... 6 IT. Il. V TABLE OF CONTENTS - Continued Page(s) A PUBLIC OFFICIAL IS ENTITLED TO QUAL- IFIED IMMUNITY WHEN HE LATERALLY TRANSFERS EMPLOYEES IF THE EMPLOYEES MAINTAIN GENUINE RESPON- SIBILITIES AND DUTIES IN THE NEW POSI- TION AND SUFFER NO REDUCTION IN SALARY, RANK, GRADE, BENEFITS, OR LOSS OF PROMOTIONAL OPPORTUNITIES........ A. The Law Must Be Clearly Established mi a Particularized Sense. ..........ccccccscees B. A Defendant Enjoys Qualified Immunity if a Reasonable Officer Could Have Believed that the Lateral Transfers Were Lawful, in Light of Clearly Established Law and the Information He Possessed at the Time of a ia C. If Reasonable Public Officials Could Differ on the Lawfulness of Petitioners’ Actions, They Are Entitled to Qualified Immunity......... D. The District Court Erred by Refusing to Grant Defendants’ Motions for Judgment as a Matter of Law Regarding Defendants’ Right to the Defense of Qualified Immu- ets EE eee Eee Tere E. Alternatively, Triable Issues of Fact Exist Regarding the Qualified Immunity Defense That Should Be Presented to the Jury..... A SPEAKER’S MOTIVATION OR INTEREST IN “SPEAKING OUT” IS A DETERMINATIVE FACTOR IN DECIDING WHETHER THE SPEECH ADDRESSES A MATTER OF PUBLIC Ra AR irs seen cau esd waves fics 13 15 16 16 vi TABLE OF CONTENTS - Continued Page(s) IV. THE PICKERING BALANCE DOES NOT VI. REQUIRE A SHOWING OF ACTUAL DISRUP- TION IN THE WORKPLACE, BUT ONLY A SHOWING OF A POTENTIAL DISRUPTION OF, OR LIKELY INTERFERENCE WITH, THE EFFICIENCY OF THE WORKPLACE BEFORE THE EMPLOYER MAY TAKE EMPLOYMENT RATING 6 i ecni sd ccedacdeWesdetpntenenetians A MUNICIPALITY CANNOT BE HELD LIA- BLE UNDER 42 U.S.C. §1983 IF THE DISTRICT COURT HELD THAT NO INDIVIDUAL DEFENDANT WAS A POLICYMAKER, AND RESPONDENTS FAILED TO ESTABLISH THAT THE CITY HAD A POLICY OR CUSTOM OF RETALIATION AGAINST EMPLOYEES WHO REPORT ALLEGED VIOLATIONS OF LAW. .. THE ISSUE OF PUNITIVE DAMAGES UNDER BOTH 42 U.S.C. §1983 AND THE TEXAS WHISTLEBLOWER ACT SHOULD NOT HAVE BEEN SUBMITTED TO THE JURY ABSENT A SHOWING OF MALICIOUS INTENT OR RECKLESS DISREGARD, AND, ALTER- NATIVELY, THE AWARD OF PUNITIVE DAM- AGES WAS GROSSLY EXCESSIVE AND eo ee Os ee ery rere eee 20 22 vii TABLE OF CONTENTS - Continued Page(s) Vil. THE TEXAS WHISTLEBLOWER ACT DID NOT PROVIDE FOR LIABILITY IN 1989 IF THE ALLEGED DISCRIMINATION WAS BASED ON A LATERAL TRANSFER, FROM THE DAY SHIFT IN THE INTELLIGENCE DIVISION TO THE NIGHT SHIFT IN THE PATROL DIVISION WITH GENUINE RESPONSIBILITIES AND DUTIES IN THE NEW POSITION AND WITH NO REDUCTION IN SALARY, RANK, GRADE, BENEFITS, OR LOSS OF PROMOTIONAL OPPORTUNITIES, AND IF THE REPORT OF THE ALLEGED VIO- LATION OF LAW WAS NOT THE REASON FOR THE LATERAL TRANSFER. ............ 26 8 Oe 29 viii TABLE OF AUTHORITIES Page(s) A. Cases ACLU v. Wicomico County, Md., 999 F.2d 780 (4th CO CE Nd vedccdakerhgeehssesun cheat cones Ter... 7 Agosto-De-Feliciano v. Aponte-Roque, 889 F.2d 1209 Ce EE FW 6 Weed eis bebe ah nl be RAMEN EK bce 8 Akers v. Caperton, 998 F.2d 220 (4th Cir. 1993)........ 8 American Surety Co. of New York v. Axtell Co., 120 Tex.. 166, 36. S.W.2G 7iS (USSG) oc viccscccsccccnccics 28 Anderson v. Creighton, 483 U.S. 635 (1987) ....... passim Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). ..17, 25 Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597 (5th Cir. 1986), cert. denied, 488 U.S. 848 (1988) ........ 26 Bausworth v. Hazelwood School Dist., 986 F.2d 1197 CR Ee. SOs oon cn deacnv nce ren eke ei nae keene cies 19 Bennis v. Gable, 823 F.2d 723 (3rd Cir. 1987).......... 8 Blum v. Schlegel, 18 F.3d 1005 (2d Cir. 1994)......... 19 Board of County Commissioners v. Umbehr, 518 U.S. cat SOE Wee GOP CRP PE es cit ev asidenivccescccs 21 Borucki v. Ryan, 827 F.2d 836 (1st Cir. 1987)...... 12, 14 Bowman v. Pulaski County Special School Dist., 723 a ee GE SN hide hace Vas euiencsicetsiess 8 Busby v. City of Orlando, 931 F.2d 764 (11th Cir. | SPE E EOE TT CP eTT eer Ce TET ET Tre E Te TTT ire 12, 14 Carey 0. Piphus, 455 US. 267 (1976) .....ccrcccccenes 24 Childers v. Independent School Dist., 676 F.2d 1338 CE SE eG Cel seve sk neater whesaeaxaute bass 8 ix TABLE OF AUTHORITIES - Continued Page(s) City of Beaumont v. Bouillion, 896 S.W.2d 143 (Tex. | ES PPE TERT ee ee pe eee eee TT yee 29 City of Ingleside v. Kneuper, 768 S.W.2d 451 (Tex.App.-Austin 1989, writ denied)............... 26 City of Newport v. Fact Concerts, Inc., 453 U.S. 247 2: PP ee iret Pe ees y rer Sr rey rey Paar 24 City of St. Louis v. Praprotnik, 485 U.S. 112 (1988) .... 23 Connick v. Myers, 461 U.S. 138 (1983)............ passim Dahm v. Flynn, 60 F.3d 253 (7th Cir. 1994)............ 7 Dartland v. Metropolitan Dade County, 866 F.2d 1321 eB Re RP Ee it SP a an acre 12 Davis v. Ector County, Texas, 40 F.3d 777 (5th Cir. DG OE Ce Pees asta a GASES cavdeiecccn: 19 Davis v. Scherer, 468 U.S. 183 (1984)............... 9 15 DiMeglio v. Haines, 45 F.3d 790 (4th Cir. 1995) .. 11, 14, 19 Fiorillo v. U.S. Dep't of Justice, Bureau of Prisons, 795 ce a ee ere 19 First Nat’l Bank of Arizona v. Cities Serv. Co., 391 fe | ES rn See ee 17 Forsyth v. Barr, 19 F.3d 1527 (5th Cir. 1994)........... 4 Forsyth v. City of Dallas, 91 F.3d 769 (5th Cir. WS cs ivi arb ek kecieiias concn tabnnesaereey cars passim Frank v. Relin, 1 F.3d 1317 (2d Cir.), cert. denied, 510 ee | Pe ee en eee 11, 14, 17 Gardetto v. Mason, 100 F.3d 803 (10th Cir. 1996)...... 18 Gillum v. City of Kerrville, 3 F.3d 117 (5th Cir. 1993), COVE, GONE, DAO TID. TOG e CHE wave kdbccvcvcccess 19 TABLE OF AUTHORITIES - Continued Page(s) Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (5th Cir. 1991), cert. denied, 503 U.S. 1011 (1992) ....... 25 Hansen v. Soldenwagner, 19 F.3d 573 (11th Cir. 1994) .... 11 Harlow v. Fitzgerald, 457 U.S. 800 (1982)......... passim Hodorowski v. Ray, 844 F.2d 1210 (5th Cir. 1988) ..12, 14 Hunter v. Bryant, 502 U.S. 224 (1991)............. 10, 15 Hurlman v. Rice, 927 F.2d 74 (2d Cir. 1991).......... 17 Jett v. Dallas Indep. School Dist., 491 U.S. 701 (1989) .... 23 Johnson v. Clifton, 74 F.3d 1087 (11th Cir.), cert. denied, ___ U.S. __, 136 L.Ed.2d 15 (1996) ........ 18 Johnson v. Multnomah County, 48 F.3d 420 (9th Cir. 1995), cert. denied, ___ U.S. ___, 132 L.Ed.2d 858 i 6s beg Uden Nha ne Reeadenin Vaan eka k Op aes 19 Karnes v. Skrutski, 62 F.3d 485 (3rd Cir. 1995)... 11, 14, 17 Kelley v. Johnson, 425 U.S. 238 (1976) ................ 21 Kompare v. Stein, 801 F.2d 883 (7th Cir. 1986)........ 14 Malley v. Briggs, 475 U.S. 335 (1986)............. passim Manhattan Beach Police Officers Ass’n v. City of Manhattan Beach, 881 F.2d 816 (9th Cir. 1989)....... 8 Matherne v. Wilson, 851 F.2d 752 (5th Cir. 1988)...... 12 McMurphy v. City of Flushing, 802 F.2d 191 (6th Cir. Se CET Eee EE PEP CTT eT ee ee TET CEEe 19 Medina v. City and County of Denver, 960 F.2d 1493 og Oe Re eee error te rer eee 11, 14 Memphis Community School Dist. v. Stachura, 477 ee EE ire 0 4 ek kad k4 cae eek Lote el ek be 24 xi TABLE OF AUTHORITIES - Continued Page(s) Monell v. New York City Dep’t. of Social Servs., 436 Se SD EE Caldn clava ccad eae ee wha bone iuuie scat 22 Muhammad v. Wainwright, 839 F.2d 1422 (11th Cir. EE ROE hee ne ba ee W Kink dd Weed es whe do iw 12 Myers v. Morris, 810 F.2d 1437 (8th Cir.), cert. a Ry. res 12, 14 NAACP v. Claiborne Hardware Co., 458 U.S. 886 SY ciae aa we dad atin on wis useless 6.6n0f dollars. See App. X and Y. A public employee’s speech is not protected when the employee speaks as a citizen on a matter of general concern that is tied to a personal employment dispute. Connick, 461 U.S. at 147, 148 n.8; Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir. 1986), cert. denied, 479 U.S. 1064 (1987). As a matter of law the Fifth Circuit should have ruled for Petitioners and held that the “speaking out” was not a matter of public concern because Respondents’ statements were necessarily tied to a personal employ- ment dispute. This Court also should address this issue because there is a conflict among the circuits whether a speaker’s motivation or interest in speaking out is a determinative factor in whether the speech addresses a matter of public concern, and because the Fifth Circuit’s ruling is inconsis- tent with its own precedent. Several circuits consider the speaker’s motivation when determining whether speech addresses a matter of public concern: Gardetto v. Mason, 100 F.3d 803, 812 (10th Cir. 1996); Johnson v. Clifton, 74 F.3d 1087, 1092 (11th Cir.), cert. denied, __ U.S. __, 117 ee ee ae ee ee a 19 S.Ct. 51, 136 L.Ed.2d 15 (1996) (Speech is not protected by the First Amendment if motivated by personal concerns instead of public concerns.); DiMeglio, 45 F.3d at 805; Smith v. Fruin, 28 F.3d 646, 652 (7th Cir. 1994), cert. denied, 513 U.S. 1083 (1995); Blum v. Schlegel, 18 F.3d 1005, 1012 (2d Cir. 1994) (The fact that employee’s speech touches on matters of public concern will not render that speech protected where the employee’s motive for the speech is private and personal.); Gillum v. City of Kerrville, 3 F.3d 117, 121 (5th Cir. 1993), cert. denied, 510 U.S. 1072 (1994); Bausworth v. Hazelwood School Dist., 986 F.2d 1197, 1198 (8th Cir. 1993) (The determination of whether speech addresses a matter of public concern focuses on the employee’s role in conveying the speech, including the employee’s motivation in speaking, rather than the pub- lic’s interest in the speech’s topic.); Fiorillo v. U.S. Dep't of Justice, Bureau of Prisons, 795 F.2d 1544, 1550 (Fed. Cir. 1986) (For speech to address a matter of public concern, the speaker’s primary motivation must be a desire to inform the public on matters of public concern and not public vindictiveness.). Other circuits determine whether the speech addresses a matter of public concern, regardless of the speaker’s motivation. Johnson v. Multnomah County, 48 F.3d 420, 425 (9th Cir. 1995), cert. denied, __ U.S. __, 115 S.Ct. 2616, 132 L.Ed.2d 858 (1995); Davis v. Ector County, Texas, 40 F.3d 777, 782 (5th Cir. 1994); Tao v. Freeh, 27 F.3d 635, 639 (D.C. Cir. 1994); O’Connor v. Steeves, 994 F.2d 905, 914 (1st Cir.), cert. denied, 510 U.S. 1024 (1993); Zamboni v. Stamler, 847 F.2d 73, 78 (3rd Cir. 1988), cert. denied, 488 U.S. 899 (1988); McMurphy v. City of Flushing, 802 F.2d 191, 197 (6th Cir. 1986). This Court should grant certiorari 20 to review and reverse the Fifth Circuit’s opinion, which at best addressed Respondents’ motivation in a cursory manner, and which is contrary to this Court’s rulings and conflicts with rulings of other circuits. IV. THE PICKERING BALANCE DOES NOT REQUIRE A SHOWING OF ACTUAL DISRUP- TION IN THE WORKPLACE, BUT ONLY A SHOWING OF A POTENTIAL DISRUPTION OF, OR LIKELY INTERFERENCE WITH, THE EFFI- CIENCY OF THE WORKPLACE BEFORE THE EMPLOYER MAY TAKE EMPLOYMENT ACTION. The Fifth Circuit’s opinion in this case is in direct conflict with several opinions of this Court because a showing of actual disruption of the workplace is not necessary prior to taking employment action. This Court has consistently held that reasonable predictions of dis- ruption are sufficient to justify restrictions on employee speech. Waters v. Churchill, 511 U.S. 661, 128 L.Ed.2d 686, 698-99 (1994) (Few cases involve tangible, present inter- ference with the agency’s operation. “The danger in them is mostly speculative. . . . [S]ubstantial weight is given to government employers’ reasonable predictions of disrup- tion, even when the speech involved is on a matter of public concern. . . . [CJonstitutional review of govern- ment employment decisions must rest on different princi- ples than review of speech restraints imposed by the government as sovereign. ... When someone who is paid a salary so that she will contribute to an agency’s effec- tive operation begins to do or say things that detract from the agency’s effective operation, the government 21 employer must have some power to restrain her.”); Con- nick, 461 U.S. at 152 (It is not necessary “for an employer to allow events to unfold to the extent that the disruption of the office and the destruction of working relationships is manifest before taking action.”); and Board of County Commissioners v. Umbehr, 518 U.S. __, 135 L.Ed.2d 843, 852 (1996) and United States v. National Treasury Employees Union, 513 U.S. __, 130 L.Ed.2d 964, 985 n.21 (1995) (Government predictions of harm used to justify restric- tions of employee speech are given great deference.). The Fifth Circuit’s ruling that the significance of Respondents’ speech outweighed the department’s efficiency concerns? because no defense witness testified that Respondents’ speech “undermined the [department's] operations,” nec- essarily holds that the department’s operations must be undermined before taking action against the employee, and this Court has never required such proof of actual disruption in the workplace. This is particularly true in paramilitary organizations. See Kelley v. Johnson, 425 U.S. 238 (1976) (A police department may have a legitimate interest in promoting esprit de corps.); Williams v. Board of Regents, 629 F.2d 993 (5th Cir. 1980), cert. denied, 452 U.S. 2 That the need for trusted relationships between superiors and subordinates is paramount in the often covert, dangerous, and sensitive field of intelligence and undercover operations is undisputed. Respondents’ chain of command knew that they lost trust and confidence in them, as evidenced by Respondents’ preparing an “indictment” against their superiors and clandestine taping of their conversations with their superiors, demonstrating that a destructive breakdown in the working relationship had occurred. See App. Z and AA. 22 926 (1981) (The court found that the “threat of disrup- | tion” was great and that discipline is important to a quasi-military organization.). V. A MUNICIPALITY CANNOT BE HELD LIABLE UNDER 42 U.S.C. §1983 IF THE DISTRICT COURT HELD THAT NO INDIVIDUAL DEFENDANT WAS A POLICYMAKER, AND RESPONDENTS FAILED TO ESTABLISH THAT THE CITY HAD A POLICY OR CUSTOM OF RETALIATION AGAINST EMPLOYEES WHO REPORT ALLEGED VIOLA- TIONS OF LAW. The Fifth Circuit’s failure to address the district court’s finding of liability of the City, based in part upon 42 U.S.C. §1983, is contradictory to this Court’s rulings and raises an important federal question. As a matter of law, the evidence was insufficient to hold the City liable under §1983. A municipality can be sued and subjected to monetary damages under §1983 only if its official policy or custom causes a person to be deprived of a federally protected right. Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 694 (1978). Respondents established neither a policy nor a cus- tom (long-standing, widespread practice) of retaliation by the City. The action of an individual official may be a basis for holding a municipality liable only if the official has policymaking authority. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-482 (1986); Monell, 436 U.S. at 694. Policymaking authority means final authority to establish municipal policy with respect to the action ordered. Pem- baur, 475 U.S. at 481-482. A city employee is not a policy- maker unless the city, through its lawmakers, has a eeiameananiliiatiliaiiaaiiiil 23 delegated exclusive policymaking authority to that employee and cannot review the action taken by the employee. Jett v. Dallas Indep. School Dist., 491 U.S. 701, 737 (1989); City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). The district court correctly held that Vines, Rollins, and Hatler were not policymakers. The uncontroverted evidence at trial established that the City has an officially adopted policy forbidding retaliation against employees for seeking redress against a superior. No evidence was presented by Respondents that the City had a policy or custom of retaliation. Thus, the issue should never have been submitted to the jury. The district court’s failure to grant Petitioners’ motions for judgment as a matter of law and submission of this issue to the jury, and the Fifth Circuit’s failure to address §1983 resulted in the improper finding of liability against the City. This Court should review this case. Finally, this Court should review this case because the Fifth Circuit’s failure to review the City’s liability under §1983, coupled with its improper finding of liability of the City under the Texas Whis- tleblower Act, results in a gross miscarriage of justice. See Section VII, infra. 24 VI. THE ISSUE OF PUNITIVE DAMAGES UNDER BOTH 42 U.S.C. §1983 AND THE TEXAS WHIS- TLEBLOWER ACT SHOULD NOT HAVE BEEN SUBMITTED TO THE JURY ABSENT A SHOW- ING OF MALICIOUS INTENT OR RECKLESS DISREGARD, AND, ALTERNATIVELY, THE AWARD OF PUNITIVE DAMAGES WAS GROSSLY EXCESSIVE AND UNREASONABLE. The Fifth Circuit’s opinion in Forsyth is in direct conflict with this Court’s opinions regarding the standard for awarding punitive damages under 42 U.S.C. §1983. No basis for an award of punitive damages exists where the evidence establishes that a defendant did not act with a malicious intent to deprive a plaintiff of his rights or do him injury and the inclusion of this issue resulted in an improper verdict against defendants. Carey v. Piphus, 435 U.S. 247 (1978). A jury may be permitted to assess puni- tive damages in an action under §1983 when the defen- dants’ conduct is motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 56 (1983); City of Newport v. Fact Concerts, Inc. 453 U.S. 247, 266-67 (1981). Punitive damages are available only on a showing of the requisite intent. Memphis Com- munity School Dist. v. Stachura, 477 U.S. 299, 306 n.9 (1986). The jury question for punitive damages was based on whether the jury found liability under Jury Question Numbers 2 and 3, not on whether the jury found malice or reckless or callous disregard of Respondents’ rights by Petitioners. There was no showing of malicious intent or reckless disregard of Respondents’ rights because the 25 transfer was not an adverse employment action, and Rollins and Hatler did not violate clearly established law of which a reasonable person would have known. Hatler and Rollins, and thereby the City, reasonably transferred Respondents because of potential disruption and extreme tension in the workplace and Respondents’ lack of confi- dence in their chain of command. The jury’s finding that the wiretap lawsuit against Rollins and other officers was not a factor in the decision to transfer Respondents dem- onstrates that no ill will or callous indifference existed on behalf of Rollins and Hatler. A scintilla of evidence to submit this issue to the jury is insufficient to present a question to the jury. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Alternatively, the great weight of the | evidence established that the verdict as to punitive dam- ages was grossly excessive and unreasonable. Glasscock v. Armstrong Cork Co., 946 F.2d 1085 (Sth Cir. 1991), cert. denied, 503 U.S. 1011 (1992). Punitive damages were also improperly awarded against the City under the Texas Whistleblower Act (“the Act”), Tex. Gov’t Code Ann. §554.002 (Vernon’s 1993), because there was no showing of malicious intent or reckless disregard of Respondents’ rights. Punitive dam- ages may be awarded only if Petitioners acted on the “basis of an aggravated mental State, such as intent, recklessness, or gross negligence, that involved either deliberate and purposeful injury to [Respondents] or actual subjective awareness that serious injury is highly probable.” Transportation Ins. Co. v. Moriel, 879 S.W.2d 10, 19 (Tex. 1994). The punitive damages assessed were so excessive that the verdict appears to be based on passion or prejudice rather than a reasoned finding based on the 26 evidence. A new trial is the proper remedy. Auster Oil & Gas, Inc. v. Stream, 835 F.2d 597 (5th Cir. 1986), cert. denied, 488 U.S. 848 (1988). Since there is no evidence supporting a finding of malice on behalf of any Petitioner in this case, no evidence exists supporting an award of punitive damages against the City under the Act. City of Ingleside v. Kneuper, 768 S.W.2d 451, 457 (Tex.App.-Austin 1989, writ denied). This Court should grant certiorari to review and vacate the Fifth Circuit’s opinion and render judg- ment for Petitioners. VII. THE TEXAS WHISTLEBLOWER ACT DID NOT PROVIDE FOR LIABILITY IN 1989 IF THE ALLEGED DISCRIMINATION WAS BASED ON A LATERAL TRANSFER, FROM THE DAY SHIFT IN THE INTELLIGENCE DIVISION TO THE NIGHT SHIFT IN THE PATROL DIVISION WITH GENUINE RESPONSIBILITIES AND DUTIES IN THE NEW POSITION AND WITH NO REDUCTION IN SALARY, RANK, GRADE, BENEFITS, OR LOSS OF PROMOTIONAL OPPORTUNITIES, AND IF THE REPORT OF THE ALLEGED VIOLATION OF LAW WAS NOT THE REASON FOR THE LATERAL TRANSFER. This Court should grant certiorari to decide this issue because the Fifth Circuit found the City liable under the Texas Whistleblower Act but refused to decide the impor- tant federal question of the City’s liability for the same acts under 42 U.S.C. §1983, and Petitioners have no other avenue of appealing the manifestly unjust ruling of the Fifth Circuit. This Court should also grant certiorari because the Fifth Circuit’s opinion regarding the City’s liability under the Act is contrary to well established law 27 by the highest court of the State of Texas. This Court can review the Fifth Circuit’s opinion regarding Respondents’ claims under the Act, since the district court assumed supplemental jurisdiction over these claims which arose out of a common nucleus of operative facts, and the Fifth Circuit issued judgment regarding these claims. See United Mine Workers v. Gibbs, 383 U.S. 715 (1966); 28 U.S.C. §§1331, 1441, 1254. To recover under the Act in 1989, a plaintiff must show that he was suspended, terminated, or otherwise discriminated against for reporting a violation of law. Tex. Gov’t Code Ann. §554.002 (West 1994) (amended 1995). As a matter of law, Respondents’ transfer was not an adverse employment action. Se¢ Section I, supra, authorities cited regarding adverse employment action. The Act provides no legally sufficient basis in this case that Respondents were discriminated against by being transferred. The Fifth Circuit supported its interpretation that the Act included transfers by stating that “the Texas legisla- ture has since amended [the Act] to clarify that it covers transfers,” Forsyth, 91 F.3d at 776; however, the new Act specifically changed the definition of adverse employ- ment action to include transfers. Tex. Gov’t Code §§554.001-002 (West Supp. 1997). The court’s holding that an amendment to the Act, effective June 15, 1995, applied to a transfer that occurred in 1989 is directly contrary to the amended Act. The amended Act adds “transfers” and substitutes “adverse employment action” for “discrimi- nates against” after the transfers in this case occurred. The Act is not retroactive and specifically states, “[t]he 28 changes in law made by this Act apply only to a suspen- sion or termination of employment of a public employee or to other adverse personnel action taken against a pub- lic employee on or after the effective date of this Act.” Tex. Gov’t Code §§554.001 historical note (West Supp. 1997) [Act of June 15, 1995, 74th Leg., ch. 721, §1]. Moreover, the Fifth Circuit’s suggestion that its inter- pretation of the Act as it applied to events in 1989 is somehow validated by an amendment that was enacted in 1995 is plainly contrary to the well-established rule of statutory construction that “when the legisiaiure amends a law, it is presumed that it intends to change the law.” American Surety Co. of New York v. Axtell Co., 120 Tex. 166, 36 S.W.2d 715 (Tex. 1930). The legislature’s amendment of the law to cover transfers in 1995 necessarily establishes that the law did not cover transfers in 1989. See Tex. Govt. Code §554.001(3) (West Supp. 1997). To hold otherwise requires a quantum leap in logic. Finally, as a matter of law, Respondents should not have recovered under the Act because they did not estab- lish that the report made to DPD (an appropriate law enforcement authority) was the reason for the transfer. Respondents’ testimony established that their retaliation claim was based on a report to the press and the lawsuit, see App. BB, CC. The jury found that the lawsuit was not a factor in the transfer. See App. W. The Fifth Circuit necessarily established that Respondents were trans- ferred two days after the news article about their lawsuit, and that Forsyth and Kirks “contend” that their com- plaints to DPD about the alleged wiretaps were ignored. Forsyth, 91 F.3d at 772. The Fifth Circuit did not address the City’s liability under §1983, and only found liability 29 under the Act based on the report to the media. While a finding of liability under §1983 could be based on a report to the press, if all other §1983 elements are met, “[t]he media is not an appropriate ‘law enforcement authority’ under the Whistleblower Act.” See City of Beau- mont v. Bouillion, 896 S.W.2d 143, 145 (Tex. 1995). Since Respondents did not show the requisite causal connec- tion, a necessary element of their whistleblower claim is missing, and no liability was established; thus, the award of $750,000 in punitive damages against the City under the Act is without legal basis. The Fifth Circuit did not cite a single Texas case for the proposition that lateral transfers would be considered to be either a demotion or discrimination by the Texas courts. The cases cited by the Fifth Circuit deal with transfers, but do not address this vital issue. The Fifth Circuit held (based on its authority to decide federal law under §1983) that “the evidence established that Forsyth and Kirk’s transfers constituted demotions.” Forsyth, 91 F.3d at 776. The Fifth Circuit then concluded that a demo- tion was discrimination under the Whistleblower Act, although none of the cited cases addresses that issue. The Fifth Circuit created a basis for recovery which Respondents did not have under federal or state law in 1989, and this Court should review the case. © CONCLUSION If the Fifth Circuit’s ruling is not reviewed by this Court, important federal questions and conflicts among the circuits will not be addressed, and failure to review 30 the rulings in this case will severely impact and unneces- sarily burden financial resources of all local governments within the Fifth Circuit because the Fifth Circuit has created a right of recovery not previously recognized by this Court. For the reasons stated herein, Petitioners respectfully request that this Court grant their Petition for Writ of Certiorari, to review and reverse the opinion of the Fifth Circuit and render judgment in favor of Petitioners in all respects and on all issues, and, alter- natively, review and remand this case for a new trial for the reasons stated herein, and for such other and further relief, at law and in equity, to which Petitioners show themselves justly entitled. Respectfully submitted, CITY ATTORNEY OF THE CITY OF DALLAS Sam A. LINDSAY City Attorney Texas State Bar No. 12368900 Janice S. Moss Assistant City Attorney Texas State Bar No. 14586050 LizsetH IsLas Assistant City Attorney Texas State Bar No. 00787750 7CN Dallas City Hall 1500 Marilla Street Dallas, Texas 75201 (214) 670-3510 — Telephone (214) 670-3515 — Telecopier Attorneys for Petitioners App. i INDEX TO APPENDICES The Appendices are listed below in accordance with the categories and order set forth in U.S. Supreme Court Rule 14(1)(i): I. OPINIONS, ORDERS, FINDINGS OF FACT, AND CONCLUSIONS OF LAW, WHETHER WRITTEN OR ORALLY GIVEN AND TRANSCRIBED, ENTERED IN CONJUNCTION WITH THE JUDGMENT SOUGHT TO BE REVIEWED Appendix A Opinion of the United States Court of Appeals for the Fifth Circuit rendered August 16, 1996, and cited as Forsyth v. City of Dallas, 91 F.3d 769 (5th Cir. 1996) ........ App. 1 Appendix B Amended Judgment of the United States Court of Appeals for the Fifth Circuit filed and issued as mandate on March 31, 1997, affirming the judgment of the dis- trict court, ordering Defendants to pay Plaintiffs’ costs, and ordering the issue of attorneys’ fees remanded to district court ..... App. 15 Appendix C Order of the United States Court of Appeals for the Fifth Circuit filed and issued as mandate on March 31, 1997, denying Appel- lants’ Motions for Rehearing and Suggestion for Rehearing En Banc and ordering that its order entered November 15, 1996 remains in er eee App. 17 Appendix D Appendix E Appendix F Appendix G Appendix H App. ii Order of the United States Court of Appeals for the Fifth Circuit filed November 15, 1996, granting Appellees’ Supplemental Motion to Amend August 16, 1996 judg- ment to extent necessary to remand issue of attorneys’ fees and granting Appellees’ alterna- tive request to remand issue of attorneys’ fees to district court for GeterMRMAOR. «o's. oo one Secs App. Amended Final Judgment of the United States District Court for the Northern District of Texas, Dallas Division, entered April 3, 1995... App. Order of the United States District Court for the Northern District of Texas, Dallas Division, filed Janu- ary 25, 1995, Denying Defendants’ Motions for Judgment as a Matter OF EUR sons vangncte van eeese ce App. Oral ruling of the United States District Court for the Northern District of Texas, Dallas Division, issued on or about January 13-25, 1995, denying Defendants’ Motion for Judgment as a Matter of Law presented at close of Plaintiffs’ case-in-chief, Record Vol. V, p. Re wie cha a ca Os ee eee App. Oral ruling of the United States Dis- trict Court for the Northern District of Texas, Dallas Division, issued on or about January 13-25, 1995, deny- ing Defendants’ Motion for Judg- ment as a Matter of Law presented at close of all of the evidence, Record VER VE OO GE... we ec eeess App. 18 20 23 30 32 App. iii Appendix I Oral ruling of the United States District Court for the Northern District of Texas, Dallas Division, issued on or about January 13-25, 1995, overruling Defendants’ Objections to the Jury Instructions and Charge, Record Vol. VII, pp. PE Ns wd bey bbs s Paee ss Odd vcacan App. 38 II. OTHER OPINIONS, ORDERS, FINDINGS OF FACT, AND CONCLUSIONS OF LAW ENTERED IN THE CASE BY COURTS, AND, IF REFERENCE THERETO IS NECESSARY TO ASCERTAIN THE GROUNDS OF THE JUDGMENT, OF THOSE IN COMPANION CASES Appendix J Order of United States Court of Appeals for the Fifth Circuit filed April 21, 1997 denying Appellants’ second motion to recall mandate and denying Appellants’ first motion to stay the issuance of mandate pending Appellants’ peti- tion for writ of certiorari to the United States Supreme Court...App. 44 Appendix K Mandate issued on March 6, 1997, on the Judgment of the United States Court of Appeals for the Fifth Circuit filed August 16, 1996, affirming the judgment of the dis- trict court and ordering Defen- dants to pay Plaintiffs’ costs...App. 46 Appendix L Judgment of the United States Court of Appeals for the Fifth Cir- cuit filed August 16, 1996, affirm- ing the judgment of the district court and ordering Defendants to pay Plaintiffs’ costs ............ App. 48 Appendix M Appendix N Appendix O Appendix P Appendix Q App. iv Order of the United States Court of Appeals for the Fifth Circuit filed March 1, 1996, denying Appellees/Cross-Appellants’ Motion to strike certain portions of Appellants/Cross-Appellees’ | Pee ee err App. Order of the United States District Court for the Northern District of Texas, Dallas Division, entered April 3, 1995, Declaring Moot Renewed Motion for Judgment as a Matter of Law and Denying in Part Amended Renewed Motion for Judgment as a Matter of Law and Denying in Part Alternative Motion for New Trial.......... App. Order of the United States District Court for the Northern District of Texas, Dallas Division, filed March 31, 1995, Granting in Part Plain- tiffs’ Motion to Amend Judgment and Granting in Part Plaintiffs’ Motion for Attorneys’ Fees and CODEN acc Eee fan we es ae ASS App. Final Judgment of the United States District Court for the North- ern District of Texas, Dallas Divi- sion, filed January 31, 1995 ....App. Opinion of the United States Court of Appeals for the Fifth Circuit in a related case (the wiretap lawsuit) rendered April 20, 1994, and cited as Forsyth v. Barr, 19 F.3d 1527 (5th Chi WR re vitae cia: App. 50 51 58 63 Ill. ORDER ON REHEARING Appendix R App. v Order of the United States Court of Appeals for the Fifth Circuit filed and issued as mandate on March 31, 1997, denying Appel- lants’ Motions for Rehearing and Suggestion for Rehearing En NE iit Peter Sahai soe os App. 113 IV. JUDGMENT SOUGHT TO BE REVIEWED (DATE OF ENTRY DIFFERENT FROM DATE OF OPINION) Appendix S Amended Judgment of the United States Court of Appeals for the Fifth Circuit filed and issued as mandate on March 31, 1997, affirming the judgment of the dis- trict court, ordering Defendants to pay Plaintiffs’ costs, and ordering the issue of attorneys’ fees remanded to district court ..... App. 114 V. CONSTITUTIONAL PROVISIONS AND STATUTES INVOLVED IN THE CASE Appendix T U.S. Const. amend. I........... App. 116 U.S. Const. amend. XIV, § 1... -App. 116 42 U.S.C. § 1983 (1994)......... App. 116 42 U.S.C. § 1988 (1994)......... App. 117 Tex. Gov’t Code Ann. § 554.002, Texas Whistleblower Act: Retalia- tion Prohibited for Reporting a Violation of Law (West 1994) | Le eee nS App. 118 App. vi Tex. Gov’t Code Ann. § 554.002, Texas Whistleblower Act: Retalia- tion Prohibited for Reporting a Violation of Law (West Supp. 1997) (amending Tex. Gov’t Code Ann. § 554.002 (West 1994)).......... App. Tex. Gov’t Code Ann. § 554.001, Texas Whistleblower Act: Defini- tions (West Supp. 1997) (amending Tex. Gov’t Code Ann. § 554.001 (VISES BPO oo cv iiceetdesseecs App. VI.. OTHER MATERIAL Appendix U Appendix V Appendix W Appendix X Appendix Y Defendants City of Dallas, Texas, Willard Rollins and Richard Hatler’s Notice of Appeal to the United States Court of Appeals for the Fifth Circuit filed April 17, ROO Kis seas Hedy ee hee tee pa een we App. Defendants’ Proposed Jury Instruction and Issue regarding whether Defendants Hatler and Rollins are entitled to the defense of qualified immunity.......... App. District Court’s Charge to the Jury filed January 18, 1995.......... App. Excerpt of Plaintiff Forsyth’s trial testimony regarding her transfer, Record Vol. II, pp. 74, 77-81, 89- Os sire chee ete aes heen eo App. Excerpt of Plaintiff Kirks’ trial tes- timony regarding his transfer, Record Vol. III, pp. 43-44, 46-47, NE Wh web ie ces A OOM a Oe as ve eu App. 118 119 120 122 125 157 166 Appendix Z Appendix AA Appendix BB Appendix CC App. vii Excerpt of Defendant Hatler’s trial testimony regarding the transfers, Record Vol. IV, pp. 85-86, 88-89, RRR IE iit ut aang App. 173 Excerpt of Defendant Rollins’ trial testimony regarding the transfers, Record Vol. V, pp. 124-127 ..... App. 189 Excerpt of Plaintiff Forsyth’s trial testimony regarding news article and lawsuit, Record Vol. I, pp. 170-171; Vol. IL, pp. 86-88 ...... App. 193 Excerpt of Plaintiff Kirks’ trial tes- timony regarding the transfers and news article, Record Vol. II, pp. 170-174; Vol. Ill, pp. 16-17 ..... App. 199 APPENDIX A App. 1 91 F.3d 764 (5th Cir. 1996) Jan FORSYTH, Richard Kirks, Plaintiffs-Appellees Cross-Appellants, v. CITY OF DALLAS, TX, et al., Defendants, City of Dallas, TX, Willard Rollins, Richard Hatler, Defendant-Appellant Cross-Appellee. No. 95-10360. United States Court of Appeals, Fifth Circuit. Aug. 16, 1996. Police officers, who were transferred from intel- ligence unit to night uniformed patrol after making alle- gations of illegal wiretapping within police department, sued city and individual defendants for retaliation in violation of First Amendment, § 1983, and Texas Whis- tleblower Act. The United States District Court for the Northern District of Texas, Robert B. Maloney, J., entered judgment against defendants for actual and exemplary damages and attorney fees and costs, but granted judg- ment as matter of law to defendants on one officer’s claim for lost wages. The Court of Appeals, Edith H. Jones, Circuit Judge, held that: (1) officers engaged in conduct protected by First Amendment; (2) transfers con- stituted demotions which deprived officers of cognizable property right, even without reducing officers’ pay; (3) evidence supported awards of $100,000 and $75,000, respectively, in emotional anguish damages and $125,000 in exemplary damages against supervisors who ordered transfers; (4) supervisors were not entitled to qualified immunity; (5) city was liable for officers’ transfers under Texas Whistleblower Act; (6) $750,000 exemplary damage App. 2 award against city under Whistleblower Act was permis- sible; (7) officer’s speculative testimony did not support lost wages claim; and (8) attorney fee awards were not unreasonable. Affirmed. See also, 19 F.3d 1527. Douglas R. Larson, Russell Howard Daniels, Law Office of Douglas R. Larson, Mesquite, TX, for Forsyth and Kirks. Sam A. Lindsay, City Attorney, Fritz Joseph Aldrine, II, Associate City Attorney, Office of the City Attorney for the City of Dallas, Dallas, TX, Janice Smith Moss, Assis- tant Attorney General, City Attorney’s Office, City of Dallas, Dallas, TX, for City of Dallas, TX, Rollins and Hatler. Bill Boyd,- McKinney, TX, for Vines. Appeals from the United States District Court for the Northern District of Texas. Before POLITZ, Chief Judge, and JONES and BARKS- DALE, Circuit Judges. EDITH H. JONES, Circuit Judge: Jan Forsyth and Richard Kirks were veteran under- cover detectives in the Intelligence Unit of the Dallas Police Department (“DPD”). They alleged, both to supe- rior officers in the DPD and later to the media, that several high-ranking DPD officers had participated in App. 3 illegal wiretapping that interfered with a sensitive under- cover investigation. After the Dallas Morning News ran two articles about their allegations, Forsyth and Kirks were transferred from the Intelligence Unit to night uni- formed patrol. Forsyth and Kirks sued the City of Dallas (“the City”), and Officers Willard Rollins, Richard Hatler, and Mack Vines for retaliating against them in violation of 42 U.S.C. § 1983 and the Texas Whistleblower Act, Tex.Civ.Stat.ANN. art. 6252-16a (1992), because they had exercised their First Amendment rights to free speech. After a jury trial, the district court entered judgment against the City, Rollins, and Hatler, assessing a total of $175,000 in actual damages, $1 million in exemplary dam- ages, and $153,470 in attorneys’ fees and costs. The dis- trict court granted judgment as a matter of law to the defendants on Kirks’s claim for lost wages. Both sides now appeal. We affirm the district court’s judgment. I. BACKGROUND At the time of this suit, Forsyth and Kirks were conducting an undercover drug “sting” in conjunction with the Federal Bureau of Investigation and the Drug Enforcement Agency. Through a complex series of events related to the sting, a Dallas lawyer (Barr) and a politi- cally influential Dallas businessman (Grogan) decided to level a complaint against Forsyth and Kirks with the DPD. The Internal Affairs (“IA”) division of the DPD investigated the complaint and exonerated Forsyth and Kirks. A copy of the IA report was given to Forsyth. From this report, Forsyth and Kirks formed a belief that several high-ranking officers within the DPD had App. 4 engaged in illegal wiretapping. They complained about the alleged wiretaps to several superior officers in the DPD. Forsyth and Kirks contend their complaints were ignored. Subsequently, Forsyth and Kirks turned the IA report over to their attorneys and instructed the attorneys to “go public” with their allegations that several high-ranking DPD officers had engaged in illegal wiretaps. On Febru- ary 5, 1989, the Dallas Morning News ran a front page article about Forsyth’s and Kirks’s allegations. Two days later, Forsyth and Kirks were called to a meeting with their supervisors, Chief Rollins and Assistant Chief Hatler. Forsyth and Kirks testified that Rollins and Hatier told them to “stop the publicity” and threatened to trans- fer them from the Intelligence Unit if any further publi- city ensued. On February 13th, Forsyth and Kirks sued the City, Rollins, and several other officers over the illegal wire- taps (“the wiretapping suit”).} On February 14th, the Dallas Morning News ran an article about the wiretapping suit. The next day, Forsyth and Kirks were transferred from the Intelligence Unit to night uniformed patrol. Rollins and Hatler requested the transfer, and Vines approved it. Although Forsyth’s and Kirks’s pay was not reduced because of the transfers, they considered their new positions to be demotions. 1 The wiretapping suit was dismissed by the district court and the Fifth Circuit affirmed, Forsyth v. Barr, 19 F.3d 1527 (5th Cir.), cert. denied, __ U.S. __, 115 S.Ct. 195, 130 L.Ed.2d 127 (1994). App. 5 They had each begun their careers, thirteen and nineteen years previously, in night uniformed patrol. Forsyth and Kirks filed the instant suit alleging that the City and Rollins, Hatler, and Vines had retaliated against them for complaining to superior DPD officers about the alleged wiretapping, for publicizing their wire- tapping allegations, and for filing the wiretapping suit, in violation of the First Amendment, § 1983, and the Whis- tleblower Act, supra. At trial, the jury found that (1) the officers’ transfers constituted adverse employment actions; (2) Forsyth and Kirks were transferred because they had complained to superior officers about the alleged wiretaps and because they had publicized their allegations to the press; (3) Forsyth and Kirks were not transferred because they had filed the wiretapping suit; (4) Forsyth and Kirks had made the internal DPD wire- tapping complaints in good faith; (5) the City had a de facto official policy of permitting the DPD to retaliate against whistleblowers; and (6) Vines was not liable for retaliating against Forsyth and Kirks. As damages, the jury found that (1) Kirks had suf- fered $50,000 in past mental anguish, $25,000 in future mental anguish, $80,000 in past lost wages, and $675,000 in future lost wages; (2) Forsyth had suffered $75,000 in past mental anguish and $25,000 in future mental anguish; (3) $125,000 in exemplary damages each should be assessed against Rollins and Hatler under § 1983; and (4) $125,000 in exemplary damages was owed by the City under § 1983 and $750,000 under the Whistleblower Act. The district court eliminated the jury’s award for Kirks’s lost wages and the § 1983 exemplary damages App. 6 against the City. The court entered judgment that (a) Rollins, Hatler, and the City were jointly and severally liable under § 1983 for Forsyth’s and Kirks’s mental anguish, or alternatively, the City was liable under the Whistleblower Act for those damages; (b) Rollins and Hatler were each liable under § 1983 for $125,000 in exemplary damages; and (c) the City was liable under the Whistleblower Act for $750,000 in exemplary damages. The district court also awarded the officers attorneys’ fees and costs. Il. DISCUSSION A. Rollins and Hatler The City, Rollins, and Hatler contend the district court erred in determining that the City and the officers had violated § 1983 by retaliating against Forsyth and Kirks because they had exercised their First Amendment rights to free speech. We will not address the troublesome question of the City’s § 1983 liability because, as dis- cussed later, the City is alternatively liable under the Whistleblower Act. Rollins’s and Hatler’s § 1983 conten- tions are unconvincing. Rollins and Hatler first assert that Forsyth and Kirks did not engage in conduct protected by the First Amend- ment. Contrary to the defendants’ arguments, Forsyth and Kirks offered unrebutted testimony that they instructed their lawyers to publicize the wiretapping alle- gations. Further, it does not appear that Forsyth and Kirks were primarily motivated by personal and not pub- lic concerns in publicizing their allegations. At the time they “spoke out,” Forsyth and Kirks had been exonerated App. 7 by the IA report. Although the plaintiffs’ disputes with DPD may have influenced their decision to speak out, the Dallas Morning News articles about their allegations dis- cussed matters of public concern. The public would want to know of charges that influential citizens were taking advantage of their relationships with the police, even to the extent of conducting their own wiretaps. Moreover, balancing the significance of the speech against the employer’s efficiency concerns, as Connick? requires, does not turn out favorably for Rollins and Hatler. No defense witness testified that Forsyth’s and Kirks’s publication of the wiretapping allegations undermined the DPD’s oper- ations. To the contrary, those witnesses testified that the newspaper articles did not affect the Department's effi- ciency. Second, Rollins and Hatler contend that the evidence was insufficient to prove that they transferred Forsyth and Kirks because of their complaints internally and then through the media about the alleged wiretapping. For- syth and Kirks testified that, two days after the first Dallas Morning News article appeared, Rollins and Hatler warned them to “stop the publicity” and threatened to transfer them if further publicity ensued. The day after the second newspaper article appeared, Rollins and Hatler transferred the plaintiffs. Third, Rollins and Hatler contend that the transfers did not deprive Forsyth and Kirks of any cognizable property right or privilege because their pay was not 2 Connick v. Myers, 461 U.S. 138, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). App. 8 reduced. This court has already rejected that argument under strikingly similar facts. In Click v. Copeland, 970 F.2d 106 (5th Cir.1992), two sheriff’s deputies were trans- ferred from the county’s law enforcement section to posi- tions as jail guards because they had engaged in conduct protected by the First Amendment. The employees suf- fered no reduction in pay. However, they contended their transfers were demotions because the jail guard positions were much less desirable then [sic] their previous ones. This court agreed that their transfers constituted demo- tions in violation of § 1983. As this court explained: Copeland maintains that his transfer of Click and Falcon to the jail was not a demotion because neither received a decrease in pay; in fact Falcon received a raise. Money alone, how- ever, does not buy happiness. The Perry Court spoke of “benefits” generally, not just salary [citing Perry v. Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697-98, 33 L.Ed.2d 570 (1972)]. The evidence adduced at trial strongly supports the proposition that jobs in the jail are not as inter- esting or prestigious as jobs in the law enforce- ment section. . . . In short, Click and Falcon’s transfers could be considered demotions even though they suffered no reduction in salary. 970 F.2d at 109. See also Fyfe v. Curlee, 902 F.2d 401, 404 (5th Cir.), cert. denied, 498 U.S. 940, 111 S.Ct. 346, 112 L.Ed.2d 310 (1990) (holding that a transfer to a less desir- able but equally paying job constituted a demotion). Click does not support the proposition that every transfer of job duties without a decrease in salary is necessarily a demotion because it eccurs following a App. 9 plaintiff’s exercise of protected speech; a plaintiff’s sub- jective perception that a demotion has occurred is not enough. Here, however, the evidence revealed that the Intelligence Unit positions were more prestigious, had better working hours, and were more interesting than night patrol. Moreover, few officers voluntarily trans- ferred from the Intelligence Unit to night patrol and other officers had been so transferred as punishment. Fourth, Rollins and Hatler contend that the evidence was insufficient for a reasonable jury to conclude that Forsyth and Kirks suffered $100,000 and $75,000 respec- tively in emotional anguish. We disagree. Forsyth testi- fied that she suffered depression, weight loss, intestinal troubles, and marital problems, that she had been sent home from work because of her depression, and that she had to consult a psychologist. Kirks testified that he suffered depression, sleeplessness, and marital problems. Judgments regarding noneconomic damages are notori- ously variable; we have no basis to reverse the jury’s evaluation. Fifth, Rollins and Hatler contend the evidence was insufficient to support the jury’s award of $125,000 in exemplary damages against each of them. We disagree; Forsyth and Kirks presented sufficient evidence from which a reasonable jury could conclude that Rollins and Hatler acted with malice or a reckless or callous disregard for the plaintiffs-appellees’ rights. See Wells v. Hico Indep. Sch. Dist., 736 F.2d 243, 259 (5th Cir.1984), cert. dismissed, 473 U.S. 901, 106 S.Ct. 11, 87 L.Ed.2d 672 (1985). Rollins and Hatler knew they could not demote Forsyth and Kirks for exercising their First Amendment rights, yet the App. 10 evidence, viewed in the light most favorable to the ver- dict, strongly corroborates the jury’s finding that they did so. Moreover, the $125,000 awards are not excessive: each is less than Forsyth’s and Kirks’s actual damages. Sixth, Rollins and Hatler contend the jury’s finding that Vines was not liable is inconsistent with its finding that they were liable. We disagree. Vines testified that he had approved Forsyth’s and Kirks’s transfers based on the information he received from Rollins and Hatler and that he routinely approved transfers recommended by superior officers. A reasonable jury could find that Vines did not retaliate against Forsyth and Kirks because he was not personally involved in their dispute and signed the transfer papers based on information from the co- defendants. The jury’s finding that Rollins and Hatler had constitutionally offensive motives for the transfers does not imply or impute the same disposition to Vines. Finally, Rollins and Hatler contend the district court erred in rejecting their defense of qualified immunity. Click held, however, that “[t]he law was established clearly enough in this circuit in January 1988 that a rea- sonable officer should have known that if he retaliated against an employee for exercising his First Amendment rights, he could not escape liability by demoting and transferring the employee rather than discharging him.” 970 F.2d at 111. The retaliatory transfers at issue here took place a year later. In sum, we affirm the district court’s judgment against Rollins and Hatler under § 1983 and the accom- panying damage awards for violating Forsyth’s and Kirks’s First Amendment rights. App. 11 B. The City of Dallas The district court found that the City was jointly and severally liable with Rollins and Hatler for $175,000 in mental anguish damages under § 1983, or alternatively, the City was liable under the Whistleblower Act for those damages. The City now appeals its liability under both statutes. We determine that the City is liable under the Whistleblower Act. That Act provides: A state or local governmental body may not suspend or terminate the employment of, or otherwise discriminate against, a public employee who reports a violation of law to an appropriate law enforcement agency if the employee report is made in good faith. Tex.Rev.Crv.Stat.ANn. art. 6252-16a § 2 (1992).3 To estab- lish a whistleblower claim, an employee must demon- strate that (a) the employee reported an alleged violation of law to an appropriate law enforcement authority; (b) the employee made the report in good faith; (c) the employer took an adverse employment action against the employee because the employee made the report; and (d) the employer’s action proximately caused the employee's injuries. Wichita County v. Hart, 892 S.W.2d 912, 920-24 (Tex.App. — Austin 1994), reversed on other grounds, 917 S.W.2d 779 (Tex.1996). 3 In September 1993, the Whistleblower Act was amended and recodified, Tex.Govt.Copve §§ 554.001-.009 (West Supp.1996). rrr App. 12 In the instant case, it is undisputed that Forsyth and Kirks reported alleged violations of law in good faith to an appropriate law enforcement agency. We have already determined that the making of the reports led to plain- tiffs’ transfers and that Forsyth and Kirks were thereby Jamaged. The only disputed issue is whether the Whis- tleblower Act prohibited the DPD from transferring For- syth and Kirks. The City contends that the Whistleblower Act did not prohibit the transfers; it argues that the transfers do not constitute demotions because Forsyth and Kirks suffered no decrease in pay, and that, in any case, demotions are not covered by the Act. We reject both of the City’s arguments. First, the evidence established that Forsyth’s and Kirks’s transfers constituted demotions. Second, Texas courts have held that the phrase “or otherwise discriminate against” in the Act prohibits an employer from demoting a whistleblowing employee. City of Brownsville v. Pena, 716 S.W.2d 677, 680 (Tex.App. - Corpus Christi 1986); City of Beaumont v. Bouillion, 873 S.W.2d 425, 445 (Tex.App. - Beaumont 1993), reversed on other grounds, 896 S.W.2d 143 (Tex.1995). Further, we point out that the Texas legislature has since amended the Whistleblower Act to clarify that it covers transfers. Tex.Govt.Cope §§ 554.001-.002 (West Supp.1996) (defining “adverse employment actions” to include transfers). The City next challenges the jury’s $750,000 exem- plary damage award. Section 4(a)(2) of the Whistleblower App. 13 Act* provides that a governmental employer can be liable for exemplary damages if the employer acts intentionally, fraudulently, maliciously, or with gross negligence. Tex.Rev.Stat.ANnn. art. 6252-16a, § 4(a)(2); City of Ingleside v. Kneuper, 768 S.W.2d 451 (Tex.App. — Austin 1989), error denied (Oct. 25, 1989). Texas courts have construed the term “employer” to hold the governmental entity vicari- ously liable for the acts of its employees. E.g., Tex. Dept. of Human Serv. v. Green, 855 S.W.2d 136, 142-43 (Tex.App. - Austin 1993), error denied (Feb. 2, 1994) (Whistleblower Act waives the government’s sovereign immunity and governmental agency may be vicariously liable for acts of low-level supervisors); City of Houston v. Leach, 819 S.W.2d 185, 200-01 (Tex.App. - Houston, 14th Dist.1991) (City of Houston held vicariously liable under the Whis- tleblower Act but not under 42 U.S.C. § 1983). The evi- dence here was sufficient to impose punitive damage liability on the City for the conduct of Rollins and Hatler. Moreover, we reject the City’s argument that the amount of exemplary damages assessed — $750,000 - was exces- sive. That amount is less than four times the officers’ actual damages. C. Other Issues Kirks cross-appeals, contending that the district court erred in granting judgment as a matter of law to the appellants on his claim for lost wages. But the evidence was insufficient to support the jury’s award. Kirks only 4 Section 4(a)(2) provides that “[a] public employee who sues under this Act may recover . . . exemplary damages.” App. 14 speculated during his testimony that his no-hire status with the DPD would make it difficult for him to obtain another job. He never testified that he actually lost work because of that status. Finally, both sides dispute the amount of attorneys’ fees awarded plaintiffs under § 1983 and § 4(a)(4) of the Whistleblower Act. We find no abuse of discretion. The district court reviewed the attorneys’ billing records in accordance with the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974), and reduced both the hourly rates and the billable hours claimed by Forsyth’s and Kirks’ attorneys, but the final award was hardly unreasonable. Il. CONCLUSION For the foregoing reasons, the judgment of the dis- trict court is AFFIRMED. APPENDIX B App. 15 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10360 D.C. Docket No. 3:91-CV-344 3:90-CV-1118-T JAN FORSYTH; RICHARD KIRKS Plaintiffs-A ppellees-Cross-Appellants v. DALLAS TX CITY OF, ET AL Defendants DALLAS TX CITY OF; WILLARD ROLLINS; RICHARD HATLER Defendants-Appellants-Cross-Appellees Appeals from the United States District Court for the Northern District of Texas, Dallas Before POLITZ, Chief Judge, JONES and BARKSDALE, Circuit Judges. JUDGMENT (Corrected) (Filed Mar. 31, 1997) This cause came on to be heard on the record on appeal and was argued by counsel. ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this court that the judgment of the district court in this cause is affirmed. App. 16 IT IS FURTHER ORDERED that defendant-appellant cross-appellee pay to plaintiffs-appellees cross-appellants the costs on appeal to be taxed by the Clerk of this Court. IT IS FURTHER ORDERED that the issue of attor- neys’ fees is remanded to the district court. ISSUED AS MANDATE: MAR 31 1997 APPENDIX C App. 17 UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10360 JAN FORSYTH; RICHARD KIRKS, Plaintiffs-Appellees-Cross-Appellants, versus DALLAS TX CITY OF, ET AL, Defendants, DALLAS TX CITY OF; WILLARD ROLLINS; RICHARD HATLER, Defendants-Appellants-Cross-Appellees. Appeals from the United States District Court for the Northern District of Texas, Dallas (Corrected) (Filed Mar. 31, 1997) Before POLITZ, Chief Judge, JONES and BARKSDALE, Circuit Judges. BY THE COURT: Appellants’ motions for rehearing and rehearing en banc are denied. The order of this court entered on November 15, 1996 remains in force and in effect. This order is then issued as and for the mandate. APPENDIX D hearers ‘jal App. 18 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10360 JAN FORSYTH; RICHARD KIRKS Plaintiffs-Appellees-Cross-Appellants v. DALLAS TX CITY OF, ET AL Defendants DALLAS TX CITY OF; WILLARD ROLLINS; RICHARD HATLER Defendants-Appellants-Cross-Appellees Appeals from the United States District Court for the Northern District of Texas, Dallas (Filed Nov. 15, 1996) Before POLITZ, Chief Judge, JONES and BARKSDALE, Circuit Judges. BY THE COURT: IT IS ORDERED that the supplemental motion of Appellees to amend the August 16, 1996 judgment is GRANTED to the extent necessary to remand the issue of attorneys’ fees; App. 19 IT IS FURTHER ORDERED that the alternative request of Appellees to remand the issue of attorney’s fees back to the District Court for determination is GRANTED. IT IS FURTHER ORDERED that the alternative request of Appellees that the Court independently set the award of attorneys’ fees is DENIED as unnecessary. APPENDIX E App. 20 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RICHARD KIRKS, et al., Plaintiffs, —"S No. 3:90-CV-1118-T CITY OF DALLAS, TEXAS, et al., Defendants. AMENDED FINAL JUDGMENT (Filed Mar. 31, 1995) (entered on docket 4-3-95 pursuant to F.R.C.P. Rules 58 and 79a) This action came before the Court on a jury trial on January 3, 1995, Honorable Robert B. Maloney, presiding, and the issues having been duly considered and a deci- sion having been rendered. It is ORDERED and ADJUDGED that on Plaintiff Kirks’s claims pursuant to 42 U.S.C. § 1983, judgment is entered in Kirks’s favor and against Defendants Rollins, Hatler, and the City of Dallas, jointly and severally, in the amount of $75,000 for mental anguish. It is FURTHER ORDERED and ADJUDGED that on Plaintiff Forsyth’s claims pursuant to 42 U.S.C. § 1983, App. 21 judgment is entered in Forsyth’s favor and against Defen- dants Rollins, Hatler, and the City of Dallas, jointly and severally, in the amount of $100,000 for mental anguish. It is FURTHER ORDERED and ADJUDGED that on Plaintiffs’ claims pursuant to 42 U.S.C. § 1983, judgment is entered in Plaintiffs’ favor and against Defendant Rollins in the amount of $125,000 for exemplary damages. It is FURTHER ORDERED and ADJUDGED that on Plaintiffs’ claims pursuant to 42 U.S.C. § 1983, judgment is entered in Plaintiffs’ favor and against Defendant Hatler in the amount of $125,000 for exemplary damages. It is FURTHER ORDERED and ADJUDGED that on Plaintiff Kirks’s claims pursuant to the Texas Whis- tleblower Act, judgment is entered in Kirks’s favor and against Defendant City of Dallas in the amount of $75,000 for mental anguish. However, these damages may only be recovered by Plaintiff Kirks in the event that he is unable to recover these same damages for his claims brought pursuant to 42 U.S.C. § 1983. It is FURTHER ORDERED and ADJUDGED that on Plaintiff Forsyth’s claims pursuant to the Texas Whis- tleblower Act, judgment is entered in Forsyth’s favor and against Defendant City of Dallas in the amount of $100,000 for mental anguish. However, these damages may only be recovered by Plaintiff Forsyth in the event that she is unable to recover these same damages for her claims brought pursuant to 42 U.S.C. § 1983. It is FURTHER ORDERED and ADJUDGED that on Plaintiffs’ claims pursuant to the Texas Whistleblower Act, judgment is entered in Plaintiffs’ favor and against | App. 22 Defendant City of Dallas in the amount of $750,000 for exemplary damages. It is FURTHER ORDERED and ADJUDGED that Plaintiffs Kirks and Forsyth take nothing against Defen- dant Vines. It is FURTHER ORDERED and ADJUDGED that judgment is entered in Plaintiffs’ favor and against Defendants Rollins, Hatler, and the City of Dallas, jointly and severally, in the amount of $146,365 for reasonable attorneys’ fees and in the amount of $7,105.15 for costs. It is FURTHER ORDERED and ADJUDGED that Plaintiffs receive post-judgment interest at the rate of 7.34% per year from the date of entry of judgment until paid on the total of the above-listed amounts. It is FURTHER ORDERED and ADJUDGED that all relief not specifically granted herein is denied. Signed this 30th day of March 1995. /s/ Robert B. Maloney Robert B. Maloney U.S. District Judge APPENDIX F App. 23 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RICHARD KIRKS, et al., Plaintiffs, ns No. 3:90-CV-1118-T CITY OF DALLAS, TEXAS, et al., Defendants. ORDER DENYING DEFENDANTS’ MOTIONS FOR JUDGMENT AS A MATTER OF LAW (Filed Jan. 25, 1995) At the close of Plaintiffs’ case-in-chief, Defendants moved for a judgment as a matter of law pursuant to Fep. R. Crv. P. 50(a). Defendants’ motion was denied. At the close of all of the evidence, Defendants renewed their motion. After consideration of the motion, the arguments, and the evidence presented at the trial, the Court denied the motion. Rule 50(a) provides: If during a trial by jury a party has been fully heard on an issue and there is no legally suffi- cient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law App. 24 against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue. The City of Dallas first moved for judgment as a matter of law on the issue of whether the city has an officially adopted and promulgated policy of retaliation in violation of 42 U.S.C. § 1983. It argued that it cannot be held liable for civil rights violations under a theory of respondeat superior or vicarious liability. The city also moved for judgment as a matter of law on the issues of whether retaliation is a persistent, widespread practice of city officials or employees, that such action is so common and well-settled as to constitute a custom that fairly represents municipal policy, and that actual or construc- tive knowledge of such custom is attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. The Court was of the opinion that the city had not established as a matter of law that an “official policy” regarding retaliation did not exist at the time Plaintiffs were transferred from the intelligence division to the patrol division. “Official policy” is defined as: 1. A policy statement, ordinance, regulation, or decision that is officially adopted and pro- mulgated by the municipality’s lawmaking officers or by an official to whom the law- makers have delegated policy-making authority; or 2. A persistent, widespread practice of city officials or employees, which, although not App. 25 authorized by officially adopted and pro- mulgated policy, is so common and well set- tled as to constitute a custom that fairly represents municipal policy. Actual or con- structive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making author- ity. Bennett v. City of Slidell, 735 F.2d 861 (Sth Cir. 1984), cert. denied, 472 U.S. 1016 (1985). Municipal liability attaches only where the decision-maker possesses final authority to establish municipal policy with respect to the action ordered. Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986). When an official’s discretionary decisions are con- strained by policies not of that official’s making, those policies, rather than the subordinate’s departures from them, are the act of the municipality. St. Louis v. Praprot- nik, 485 U.S. 112, 127 (1988). Similarly, when a subordi- nate’s decision is subject to review by the municipality's authorized policymakers, they have retained the author- ity to measure the official’s conduct for conformance with their policies. Id. If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratifica- tion would be chargeable to the municipality because their decision is final. Id. After reviewing the evidence admitted at trial, the Court was of the opinion that Chiefs Hatler, Rollins, and Vines did not have final authority with respect to the decision to transfer Kirks or Forsyth. Pursuant to Section 2, Chapter XII of the Dallas City Charter, which was admitted into evidence, the police chief shall “have immediate direction and control of the police department, App. 26 subject to the supervision of the city manager, and also subject to such rules, regulations and orders as the city manager may prescribe, not inconsistent with the ordi- nances of the city, and shall promulgate all orders, rules and regulations for government of the police force.” Because the police chief maintained supervisory control over his deputy chiefs and the city manager maintained supervisory control over the police chief, Chiefs Hatler, Rollins, and Vines did not have final authority. Although the individual defendants did not have final authority, a fact question remained regarding whether there was in fact an official policy of retaliation. Defendants next moved for judgment as a matter of law on the issue of whether Plaintiffs’ speech was pro- tected. They argued that Plaintiffs did not supply the information to the reporter and thus the speech was not theirs to protect. They next argued that Plaintiffs did not speak as citizens upon matters of public concern but instead as employees upon issues of personal interest. Alternatively, Defendants argued that, if Plaintiffs did speak upon matters of public concern, Defendants’ inter- est in promoting the efficiency of the public services performed by the intelligence division outweighed Plain- tiffs’ interest in commenting upon matters of public con- cern. To establish a constitutional violation, plaintiffs must first prove that their speech involved a matter of public concern. Connick v. Meyers, 461 U.S. 138 (1983). Second, they must demonstrate that their interest in commenting upon matters of public concern is greater than defen- dants’ interest in promoting the efficiency of the public App. 27 services they perform. Pickering v. Board of Educ., 391 U.S. 563, 568 (1968). The Court found that the newspaper articles intro- duced into evidence constituted the First Amendment speech expressions of Plaintiffs. The Court further found that, although the actual statements made were made by counsel for Plaintiffs, the statements were made pursuant to authority given by Plaintiffs. See Brawner v. City of Richardson, 855 F.2d 187 (5th Cir. 1988). The Court con- cluded that the speech made by Plaintiffs’ authorized agent was sufficiently connected to Plaintiffs to be con- sidered Plaintiffs’ speech. After examination of the newspaper articles, the Court found that the articles detail allegations of criminal wrongdoing by Dallas police officials and allegations of conflict of interest and malfeasance by police officials in ignoring the involvement of a politically connected attor- ney in an alleged illegal wiretap operation. However, the speech was made in connection with a lawsuit to be filed by Plaintiffs. Thus, the Court believed that Plaintiffs had a mixed motive in exercising their right to free speech. The Court then weighed whether Plaintiffs were speaking as employees involved in a personal employment dispute or as citizens generally speaking out on a matter of public concern. Considering the record in this case, the content of the statements, and the context and circumstances under which the statements were made, the Court con- cluded that Plaintiffs spoke predominately [sic] as citi- zens and the content addressed a matter of public concern. App. 28 The Court further found that Plaintiffs’ interest in speaking on matters of public concern outweighed Defen- dants’ interest in promoting the efficiency of the public services they perform. Specifically, Plaintiffs’ interest and the public’s interest in ensuring that favoritism and dere- liction of duty do not occur in the police department outweighed Defendants’ interest in maintaining control over their employees. Accordingly, Plaintiffs’ speech was protected speech under the First Amendment as a matter of law. Defendants next moved for judgment as a matter of law on Plaintiffs’ whistleblower causes of action. They argue that Plaintiffs’ transfers were not adverse employ- ment actions. Alternatively, they argued that, if the trans- fers were adverse, the transfers were not done for retaliatory purposes. After reviewing the evidence presented at trial, the Court was of the opinion that fact issues existed as to whether the transfers were adverse employment actions and whether the transfers were done for retaliatory pur- poses. Last, the individual defendants moved for judgment as a matter of law that they are protected by qualified immunity. The Court ruled that for the individual defendants to avail themselves of qualified immunity there must be shown that the individual defendants did not know and reasonably would not have known that retaliation against a person for exercising a First Amendment right was illegal. The testimony at triai does not support such a finding, since the Defendants testified that they did know App. 29 such action would be illegal and that retaliation did not enter into their decision to transfer Plaintiffs. The Court concluded that the issue of qualified immunity was not raised and that there existed an issue of material fact as to the individual defendants’ real motive in transferring Plaintiffs. Accordingly, Defendants’ Motions for Judg- ment as a Matter of Law should be denied. It is therefore ORDERED that the oral Motions for Judgment as a Matter of Law made by Defendants at the close of all of the evidence on January 12, 1995, are denied. Signed this 25th day of January 1995. /s/ Robert B. Maloney Robert B. Maloney U.S. District Judge APPENDIX G LE TS Ts | PT FST RUE FOURS” INET TEERRRRRRE ITS Se 6-7 Soe PH Sate App. 30 K. LYBRAND - Recross-Examination by Aldrine OUT OF THE PRESENCE OF THE JURY Volume V + * * [p. 117] review some of the authority presented. MR. LARSON: I’m sorry. I didn’t hear you, Judge? MR. BOYD: Come back at one. THE COURT: Come back at one. I’m going to review some of the authorities that’s been presented. MR. GILLMEN: All rise. (Lunch recess.) MR. GILLMEN: All rise. (Judge enters the courtroom.) THE COURT: The court has used the lunch hour time to review some, but not all of the authorities presented to the court. There is not enough authority that the court has reviewed at this time for the court to be able to grant a motion for judgment. So at this time, the motion for judgment are denied both as to all defendants. Of course, each and all of the defendants may renew their motion at the close of all the evidence, and the court will consider all of the arguments that have been previ- ously made for judgment at that time. Okay. Is the defendant prepared to proceed? App. 31 MR. HOPKINS: Yes, Your Honor. MR. BOYD: May we confer briefly, Your Honor, in view of the court’s ruling? THE COURT: You may. + + a APPENDIX H App. 32 CHARGE CONFERENCE OUT OF THE PRESENCE OF THE JURY Volume VI [p. 62] THE COURT: Then I think that I will leave that decision to you. All right. The court will be in recess. THE CLERK: All rise. (Court was in recess.) CHARGE CONFERENCE THE CLERK: All rise. (Judge enters the courtroom.) THE CLERK: Be seated, please. THE COURT: All right. As usual, things seem to take about three times as long as I originally estimate they’re going to take, so the charge that I have - the draft of the charge that I have put in your hands is very much a rough draft. There are certain areas that some of the liability and damage questions I haven’t made a decision of how to break those out as to individual defendants, things of that nature that is more mechanical than they are substantive, but there is still lot of decisions to be made on the charge, so don’t anyone get alarmed or self-satisfied if the charge looks the way you like it, because it may look entirely different tomorrow. Before I start on the charge, I will be issuing a more complete order on the defendant’s Rule 50 motions, but App. 33 to dispose of certain matters that the court feels it should [p. 63] rule on as a matter of law, I will give you some- what a shorthand - as a matter fact, the longhand ruling on those matters. As to the question of the plaintiffs’ free speech First Amendment questions, the court finds that the news- paper articles introduced in evidence constitute the First Amendment speech expression of the plaintiffs. The court finds that although the actions, statements were made by counsel for plaintiffs, the statements — that the statements were made pursuant to authority given to counsel by the plaintiffs. The court concludes that the speech made by an authorized agent of the plaintiffs is sufficient to be con- nected to plaintiffs, to be considered plaintiffs’ speech. The court, after examination of the articles, finds that the articles detail allegations of criminal wrongdoing by Dallas police officials and allegations of conflict of inter- est and malfeasance by police officials in the authority involvement of the politically connected attorney in an illegal wiretap operation. Consequently, the court concludes that the plaintiffs’ speech addressed a matter of public concern as the speech as made in connection with the lawsuit to be filed by the plaintiffs, the court believes that the plaintiffs having [p. 64] mixed motives in exercising their right to free speech. However, the court has weighed whether the plain- tiffs were speaking as employees involved in a personal ‘eal App. 34 employment dispute or as citizens genuinely speaking out on a matter of public concern. Considering the record in this case, the content of the statements, and the context of the circumstances under which the statements were made, the court finds that at the time the statements were made the content of the statements in considering the content of the statement, the plaintiffs had little to gain personally from the state- ments and that the evidence produced in this trial is sufficient to reasonably justify the plaintiffs’ belief that a coverup was in progress. The court finds that the plaintiffs’ interest and the public’s interest in ensuring that favoritism and question- able criminal investigation do not occur in the police department outweighs the defendants’ interest in main- taining strict control over the statements made by its employees. Therefore, the court concludes that the plaintiffs spoke primarily as citizens in the content address in a matter of public concern and, therefore, was protected speech under the First Amendment as a matter of law. The court finds that includes that municipal liability [p. 65] attaches only where the decision-makers possess final authority to establish municipal policy with respect to the action ordered and the official’s discretionary deci- sion are constrained by the policy is not of that official’s making. Those policies, rather than the subordinate’s departure from them the act of municipality. Similarly, when a subordinate’s decision is subject to review by the municipality’s authorized policy makers, App. 35 they have retained hereby to measure the official’s con- duct or performance with their policies. After reviewing the evidence admitted in trial, the court is of the opinion that Chief Vines did not have the final authority with respect to the decision to transfer Kirks or Forsyth. Pursuant to Section 2, Chapter 12 of the Dallas City Charter, which is submitted into evidence, the Chief of Police shall have immediate direction and control over the police department subject to supervision of the City Manager and also subject to such rules and regulations and orders that the City Manager may prescribe, not inconsistent with the ordinance of the city and shall pro- mulgate all orders, rules and regulations for the govern- ment of the police force. Because the City Manager maintains supervisory control over the Police Chief, Chief Vines did not have final [p. 66] authority. Therefore, the court finds that the actions of Chief Vines were not sufficient to establish as a matter of law that the — an official policy of the City of Dallas. It does not mean that it cannot be established by other means, but simply not simply because he made the decision in the case. As to qualified immunity for the individual defen- dants to avail themselves for qualified immunity, there it must be shown that the individual defendant did not know and reasonably would not have known that retalia- tion against the person for exercising their First Amend- ment right was illegal. ee ee! eee App. 36 Testimony at trial does not support such a finding since the defendants testified they did not know - that they did know such action would be illegal and that retaliation did not enter into their decision to transfer the plaintiffs. Therefore, the court concludes that qualified immu- nity is not an [sic] raised issue, is a material fact issue as to the individual defendant's real motive in transferring plaintiffs. Therefore, in summary, the court finds that the plain- tiffs’ speech was a matter of public concern and it was protected speech, that Mack Vines, police chief at the time [p. 67] in question, was not a final decision maker or policy maker as regards to these plaintiffs. His actions do not establish an official policy of the City of Dallas, and that the individual defendants are not entitled to quali- fied immunity. Now, I'll take up the charge. Mr. Larson, I'll let you go first. MR. LARSON: Yes, sir. I assume in light of what you just read, some of the charge is going to be changed in regards to reflect that. THE COURT: That’s correct. MR. LARSON: Okay. All right. THE COURT: Let me kind of give you an idea of how I go about these things. And I didn’t have time to complete it. App. 37 Since the plaintiff has the burden of proof, I generally start out with the plaintiffs’ charge and try to give the plaintiff, in the draft copy, as much charge as I can in good conscious [sic] allow the plaintiff to have. That does not mean that I have rejected the defendants’ requested charge. So I just want you to know procedures there and so the charge will look, at this point, as if it is your charge - MR. LARSON: Yes, sir. THE COURT: - but it may not end up that way. APPENDIX I App. 38 OBJECTIONS TO THE CHARGE OUT OF THE PRESENCE OF THE JURY Volume III + oF * [p. 5] THE COURT: Thank you. MR. ALDRINE: Yes, Your Honor. First of all, on charge — page 6, with the intent, the defendants object to the instructions that are given and seek to include any instructions [sic] on intent that’s found in Longoria V. Wilson, it’s 730 F 2d 300, and Young V. City of New Orleans, F 2d 59 - F 2d 794. We feel that the instruction included does not com- plete — fails to adequately inform the jury of the applica- ble laws at issue in the instruction as is and as is in all probability will cause a condition of improper verdict against the defendants. THE COURT: Overruled. MR. ALDRINE: On turning to page 9, lines 3 and 5, may be awarded exemplary damages, we seek to have that excluded or at least qualified. It seems to be too conclusory and misleading and the failure of the court to include a requested instruction does not adequately inform the jury of applicable law, and the failure to include a more clear instruction in all probably [sic] will result in an improper verdict against the defendants. THE COURT: Overruled. MR. ALDRINE: Turning to page 14, last full paragraph, defendants object to its inclusion and seek to replace it with defendants’ proposed instructions found ee App. 39 on [p. 6] defendants’ proposed charge, pages 18 through 20. We feel that the failure of the court to include this | requested instruction does not adequately inform the jury of applicable law, and the failure to include the instruc- tion in all probability will result in an improper verdict against the defendants. THE COURT: Overruled. MR. ALDRINE: Turning to, I guess you would say, page 17, Your Honor. We believe an additional ques- tion should precede question 3 regarding whether the plaintiffs actually reported alleged illegal conduct to the press. We feel that the failure of the court to include a requested instruction on this issue does not adequately provide the jury with the opportunity to apply the law, and the failure to include the question in all probability will result in an improper verdict against the plaintiffs. THE COURT: Overruled. MR. ALDRINE: Turning to page 18, line 7, per- mitting retaliation, defendants seek to change that to — ; that phrase to retaliating. We feel that the question as is is | misleading to the jury. THE COURT: Overruled. | ; MR. ALDRINE: Turning to page 19, Your Honor, lines 33 through 37, we feel the instruction as is is conclusory and comments on the weight of the evidence. We [p. 7] feel that the instruction is not complete and fails to adequately inform the jury with the applicable laws. App. 40 The issue and any instruction as is, in all probability, will cause an improper verdict against the defendants. THE COURT: Overruled. MR. ALDRINE: At this time, Your Honor, we also object to the failure to include an instruction and question regarding qualified immunity as to the defen- dants as contained in defendants’ charge page 15 and 17. THE COURT: Requested charge is denied. MR. ALDRINE: Turning to page 26, Your Honor, we object to the inclusion of question C and D as there is insufficient evidence to warrant submission of the issue to the jury. THE COURT: Overruled. MR. ALDRINE: And, furthermore, Your Honor, we also — if C and D are to be included, we seek an instruction with regard to earnings in the future and in the past as the court has failed to include such an instruc- tion. I think there was one included yesterday, Your Honor. THE COURT: I’m not following you. MR. ALDRINE: I think that in yesterday’s charge there was an instruction — THE COURT: I hadn’t changed that from yes- terday. [p. 8] You are on page 26, are you not? MR. ALDRINE: Yes, Your Honor. THE COURT: Okay. a App. 41 MR. ALDRINE: I’m just looking back at yester- day’s charge on the double recovery and compensatory damages section. THE COURT: Yes. But I thought you were talk- ing about there was something that I had on page 26. MR. ALDRINE: Well, you started the question, Your Honor, but preceding that, if you were going to include the question on page 26 regarding past and future earning capacities, there is no longer an instruction on that. And yesterday’s charge there was an instruction that said if plaintiffs prove that the injury they suffered extended into the future because it will be denied future economic opportunities because of the defendants’ illegal actions and then the damages you may award - you award may compensate them for that loss in compensat- ing in your calculation. However, you must include a reduction of future damages as a loss of income the present value in order to take into account —- into account the earning power of the money awarded. I don’t find that in the charge today. THE COURT: I did take that out. I may put that back in. [p. 9] For purposes of your record, I’m going to deny it. I may put it in so that you will have a record on my ruling as it turns out. If I don’t put it back in, I’ll deny it at this time. | eee App. 42 MR. ALDRINE: Turning to page 28 and 29, Your Honor, we further stress that any issue and instruc- tion to the jury regarding punitive damages is unwar- ranted. There is simply insufficient evidence to warrant submission of this issue to the jury. THE COURT: Overruled. MR. ALDRINE: Okay. Your Honor, with respect to questions 9, 10, 11 we feel that the question should not be included because of the fact that the first question on punitive damages asks the jury do you want to punish the defendants. But even if they would say no, it seems as if the next question would Say are you sure you don’t want to punish the defendants for punitive damages, whereas the next question would also say are you really sure. THE COURT: What do you mean? MR. ALDRINE: I mean, it doesn’t - THE COURT: I’m not following. MR. ALDRINE: - three shots at the apple - THE COURT: They are a [sic] different defen- dants. MR. ALDRINE: Well, that would bring up another objection, Your Honor. We feel if they’re to be included [p. 10] that the City of Dallas should be included back on page 9 at the bottom of the fact on page 29, Your Honor, at the bottom of Vines, Rollins and Hatler. It seems that that’s a comment on the weight of the evidence. Since we have a separate — if we separate App. 43 the City of Dallas from the individual defendants on a separate question. THE COURT: But it is a separate question. So your objection is overruled on that. MR. ALDRINE: Nothing else, Your Honor. THE COURT: Mr. Boyd. MR. BOYD: We renew our motion for judgment on the law. We - that we made previously and we suggest that now that the evidence has closed on both sides that there is no evidence on the alternative. There is insuffi- cient evidence to support the submission of any issues or any jury verdict on those issues against Mack Vines. THE COURT: Overruled. MR. BOYD: All right. We would adopt the other objections made by the Assizzant City Attorney in this case without repeating them. THE COURT: Accepted. MR. BOYD: I assume the ruling will be the same. THE COURT: Accepted. THE COURT: All right. Is there anything fur- ther before I take up argument? a + * APPENDIX J App. 44 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10360 JAN FORSYTH; RICHARD KIRKS Plaintiffs-Appellees-Cross-Appellants v. DALLAS TX CITY OF, ET AL Defendants DALLAS TX CITY OF; WILLARD ROLLINS; RICHARD HATLER Defendants-Appellants-Cross-Appellees Appeals from the United States District Court for the Northern District of Texas, Dallas (Filed Apr. 21, 1997) ORDER: (X) The motion of appellant to recall and stay of the issuance of the mandate pending petition for writ of certiorari is DENIED. ( ) The motion of appellant to recall and stay of the issuance of the mandate pending petition for writ of certiorari is GRANTED to and including P the stay is in force until the final disposition of the App. 45 case by the Supreme Court, provided that the certifi- cate of the Clerk of the Supreme Court that the certiorari petition has been filed is also filed with this court within the time stated above. The clerk shall issue a mandate upon the filing of a copy of an order of the Supreme Court denying the writ, or upon the expiration of this stay unless the certificate is filed with the clerk of this court within that time. a /s/ Edith H. Jones UNITED STATES CIRCUIT JUDGE APPENDIX K ere App. 46 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10360 D.C. Docket No. 3:91-CV-344 3:90-CV-1118-T JAN FORSYTH; RICHARD KIRKS Plaintiffs-A ppellees-Cross-A ppellants v. DALLAS TX CITY OF, ET AL Defendants DALLAS TX CITY OF; WILLARD ROLLINS; RICHARD HATLER Defendants-Appellants-Cross-Appellees Appeals from the United States District Court for the Northern District of Texas, Dallas Before POLITZ, Chief Judge, BARKSDALE, and JONES, Circuit Judges. JUDGMENT (Filed Aug. 16, 1996) This cause came on to be heard on the record on appeal and was argued by counsel. App. 47 ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this court that the judgment of the district court in this cause is affirmed. IT IS FURTHER ORDERED that defendant-appellant cross-appellee pay to plaintiffs-appellees cross-appellants the costs on appeal to be taxed by the Clerk of this Court. ISSUED AS MANDATE: MAR 06 1997 APPENDIX L Fa rhs onal A WORSE HRs to a SAAR ARSIOSTEAS ELSI DSS a cS en SRSA LSM ESTUARINE MA HO DAG AW BS pena Bo we Cpe Pooh OL App. 48 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10360 D.C. Docket No. 3:91-CV-344 3:90-CV-1118-T JAN FORSYTH; RICHARD KIRKS Plaintiffs-A ppellees-Cross-Appellants v. DALLAS TX CITY OF, ET AL Defendants DALLAS TX CITY OF; WILLARD ROLLINS; RICHARD HATLER Defendants-Appellants-Cross-Appellees Appeals from the United States District Court for the Northern District of Texas, Dallas Before POLITZ, Chief Judge, BARKSDALE, and JONES, Circuit Judges. JUDGMENT (Filed Aug. 16, 1996) This cause came on to be heard on the record on appeal and was argued by counsel. App. 49 ON CONSIDERATION WHEREOF, it is now here ordered and adjudged by this court that the judgment of the district court in this cause is affirmed. IT IS FURTHER ORDERED that defendant-appellant cross-appellee pay to plaintiffs-appellees cross-appellants the costs on appeal to be taxed by the Clerk of this Court. ISSUED AS MANDATE: MAR 06 1997 APPENDIX M puiersiapep is ee 5 i ASU AULA BIS Hekate os Mini Re L ay He A IOC RS, App. 50 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-10360 JAN FORSYTH; RICHARD KIRKS Plaintiffs-A ppellees-Cross-A ppellants v. DALLAS TX CITY OF, ET AL Defendants DALLAS TX CITY OF; WILLARD ROLLINS; RICHARD HATLER Defendants-Appellants-Cross-Appellees Appeal from the United States District Court for the Northern District of Texas, Dallas (Filed Mar. 1, 1996) ORDER: IT IS ORDERED that appellees cross-appellants’ motion to strike certain portions of reply brief of appel- lants cross-appellees is denied. /s/ Jacques L. Wiener, Jr. Jacques L. Wiener, Jr. UNITED STATES CIRCUIT JUDGE APPENDIX N App. 51 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RICHARD KIRKS, et al., Plaintiffs, v. No. 3:90-CV-1118-T CITY OF DALLAS, TEXAS, et al., Defendants. ORDER DECLARING MOOT RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW AND DENYING IN PART AMENDED RENEWED MOTION FOR JUDGMENT AS A MATTER OF LAW AND DENYING IN PART ALTERNATIVE MOTION FOR NEW TRIAL (Filed Mar. 31, 1995) (Entered on docket 4-3-95 pursuant to F.R.C.P. Rules 58 and 79a) Before the Court are Defendants’ Renewed Motion for Judgment as a Matter of Law, Amended Renewed Motic.: for Judgment as a Matter of Law, and Motion for New Trial in the Alternative to their Renewed Motion for Judgment as a Matter of Law. The motions are opposed. After consideration of the motions, responses, and re- plies, the Court is of the opinion that the Renewed Motion for Judgment as a Matter of Law should be declared moot because the amended motion supersedes App. 52 it. The Court is further of the opinion that Defendants’ Amended Renewed Motion for Judgment as a Matter of Law and Alternative Motion for New Trial should be denied in part. Defendants move the Court to set aside the verdict and judgment in this case, vacate the Court’s January 27, 1995, Order Denying Defendants’ Motions for Judgment as a Matter of Law, and dismiss this case against them pursuant to Fep. R. Civ. P. 50(b). Alternatively, they move the Court for a new trial pursuant to Fep. R. Civ. P. 59. In their Amended Renewed Motion for Judgment as a Matter of Law, Defendants essentially reargue the same points addressed in their earlier Motions for Judgment as a Matter of Law with a few exceptions. They argue that (1) Plaintiffs’ transfers were not adverse employment actions; (2) Plaintiffs failed to establish that they made the expressive conduct at issue; (3) Plaintiffs failed to overcome the public concern threshold as they were speaking out primarily as employees embroiled in a per- sonal employment dispute; (4) Defendants’ interest in promoting the efficiency of the public services performed by the intelligence division outweighs Plaintiffs’ interest, if any, in commenting upon matters of public concern; (5) Defendants Rollins and Hatler were entitled to the defense of qualified immunity; (6) there is no evidence that the City of Dallas has an officially adopted and promulgated policy of retaliation in violation of 42 U.S.C. § 1983; (7) there is no evidence that Plaintiffs were dis- criminated against under the Texas Whistleblower Act; (8) a finding of no liability as to Defendant Vines must lead to a finding of no liability as to the other defendants; (9) there is no evidence to support an award of punitive App. 53 damages against Defendants Rollins and Hatler under 42 U.S.C. § 1983; (10) punitive damages are not recoverable against a municipality under 42 U.S.C. § 1983; and (11) there is no evidence to Support an award of punitive damages against the City of Dallas under the Texas Whis- tleblower Act. The Court declines to address those arguments that have been previously briefed by the parties and ruled upon by the Court. To do so would be a waste of scarce judicial resources. Accordingly, the Court reaffirms its rulings in its January 27, 1995, Order Denying Defen- dants’ Motions for Judgment as a Matter of Law with respect to Defendants’ arguments that: (1) Plaintiffs’ transfers were not adverse employment actions; (2) Plain- tiffs failed to establish that they made the expressive conduct at issue; (3) Plaintiffs failed to overcome the public concern threshold as they were speaking out pri- marily as employees embroiled in a personal employment dispute; (4) Defendants’ interest in promoting the effi- ciency of the public services performed by the intel- ligence division outweighs Plaintiffs’ interest, if any, in commenting upon matters of public concern; (5) Defen- dants Rollins and Hatler were entitled to the defense of qualified immunity; and (6) there is no evidence that the City of Dallas has an officially adopted and promulgated policy of retaliation in violation of 42 U.S.C. § 1983. Moreover, the Court finds that sufficient evidence existed to support the jury’s findings with regard to the above issues. With regard to the remaining issues the Court finds that there was sufficient evidence to support a finding that Plaintiffs were discriminated against under the Texas App. 54 Whistleblower Act. Additionally, sufficient evidence exis- ted to support an award of punitive damages against Defendants Rollins and Hatler for violating 42 U.S.C. § 1983 and against the City of Dallas for violating the Texas Whistleblower Act. The Court disagrees that a find- ing of no liability as to Defendant Vines would lead to a finding of no liability against Defendants Rollins and Hatler. Last, Plaintiffs concede and the Court agrees that punitive damages are not recoverable against a munici- pality under 42 U.S.C. § 1983. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981). Accordingly, Defendants’ Amended Renewed Motion for Judgment as a Matter of Law should be denied except that punitive damages are not recoverable against the City of Dallas under 42 U.S.C. § 1983. In Defendants’ Alternative Motion, they move for a new trial, an amended final judgment, or a remittitur. They repeat their arguments presented in their Amended Renewed Motion for Judgment as Matter of Law with a few exceptions. For the sake of judicial economy, the Court will not revisit Defendants’ repeated arguments and will only address their newly presented issues. Defendants first argue that the Court erred in sub- mitting the following issues to the jury because there was insufficient evidence: (1) whether the city has an officially adopted and promulgated policy of retaliation in viola- tion of 42 U.S.C. § 1983; (2) whether punitive damages should be awarded under 42 U.S.C. § 1983 and the Texas Whistleblower Act; and (3) what amount of damages would compensate Plaintiffs Kirks and Forsyth for their past and future mental anguish. App. 55 The Court finds that there was sufficient evidence to submit the above issues to the jury. Defendants next argue that the Court erred in failing to submit issues to the jury regarding whether Plaintiffs reported any alleged illegal conduct to the press and regarding the issue of qualified immunity as to Defen- dants Rollins and Hatler. The Court is of the opinion that it did not error [sic] in omitting the above issues to the jury. Defendants next argue that the Court erred by sub- mitting an issue to the jury regarding the amount of damages that would compensate Kirks for his loss of past earnings and loss of future earning Capacity. They con- tend that the great weight of the evidence established no basis for an award of loss of past earnings or loss of future earning capacity. They also argue that his testi- mony regarding his no-rehire status was irrelevant and should have been excluded. The Court finds that there was insufficient evidence to support an award of damages for Kirks’s loss of past earnings and loss of future earning capacity. Kirks specu- lated that because of his no-rehire status it would be difficult for him to obtain employment. However, he never testified that he actually lost work because of that status. Accordingly, the Final Judgment will be amended to delete the award for Kirks’s loss of past earnings and loss of future earning capacity. Defendants next argue that the jury’s answers on punitive damages were inconsistent. They contend that Plaintiffs claimed the same damages on the same facts App. 56 under their § 1983 claims and their Texas Whistleblower claims yet the jury awarded them $125,000 in punitive damages for the § 1983 violations and $750,000 in puni- tive damages for the Texas Whistleblower Act violations. The jury actually awarded Plaintiffs $375,000 in puni- tive damages for their claims brought pursuant to 42 U.S.C. § 1983. It awarded Plaintiffs $125,000 in punitive damages from each of Defendants Rollins, Hatler, and the City of Dallas. The Court is of the opinion that the jury’s answers on punitive damages were not inconsistent in that the damages were awarded for different conduct. One award was related to violations of Plaintiffs’ First Amendment rights while the other was related to viola- tions of the Texas Whistleblower Act. Defendants next argue that the great weight of the evidence established that the verdict regarding mental anguish and punitive damages is unreasonable and exces- sive. The Court disagrees and finds that sufficient evi- dence was presented to the jury with regard to mental anguish and punitive damages. Alternatively, Defendants argue that they are entitled to a remittitur of the damages awarded. They suggest that a 90% reduction would be appropriate. The Court is of the opinion that sufficient evidence supports the damages awarded by the jury with the exception of the damages awarded to Kirks for loss of past earnings and loss of future earning capacity. Accord- ingly, it declines to remit the damages. Se SONA AT LN LE A ee -" 7 a App. 57 Accordingly, Defendants’ Alternative Motion for New Trial should be denied except that there is insuffj- cient evidence to Support Kirks’s award for loss of past earnings and future loss of earning capacity. It is therefore ORDERED that the Renewed Motion for Judgment as a Matter of Law filed by Defendants on February 13, 1995, is declared moot. It is FURTHER ORDERED that the Amended Renewed Motion for Judgment as a Matter of Law filed by Defendants on February 14, 1995, is denied in part. It is FURTHER ORDERED that the Motion for New Trial in the Alternative to their Renewed Motion for Judgment as a Matter of Law filed by Defendants on February 14, 1995, is denied in part. Signed this 30th day of March 1995. /s/ Robert B. Maloney Robert B. Maloney U.S. District Judge dic rahiaahalieele op aia Oe Fy DP RAE ba Sor er APPENDIX O App. 58 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RICHARD KIRKS, et al., Plaintiffs, . No. 3:90-CV-1118-T CITY OF DALLAS, TEXAS, et al., Defendants. ORDER GRANTING IN PART PLAINTIFFS’ MOTION TO AMEND JUDGMENT AND GRANTING IN PART PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS (Filed Mar. 31, 1995) Before the Court are Plaintiffs’ Motion to Amend Judgment and Motion for Attorneys’ Fees and Costs. The motions are opposed. After consideration of the motions, responses, and replies, the Court is of the opinion that the motions should be granted in part. Plaintiffs move the Court to amend the final judg- ment in this case to include an award for prejudgment interest on their compensatory damages under 42 U.S.C. § 1983 and under the Texas Whistleblower’s Statute. They next request that the post-judgment interest rate be changed from the federal rate to the state rate. They last App. 59 request that they be awarded reasonable attorneys’ fees and costs. Defendants respond that federal and state law pre- clude an award of prejudgment interest. They further respond that federal law dictates the amount of post- judgment interest to be awarded in this case. They last respond that plaintiffs’ request for attorneys’ fees and costs is excessive and should be reduced. The Court is of the opinion that Plaintiffs are not entitled to prejudgment interest in this case and the fed- eral post-judgment rate of interest is the correct interest rate. The Court is further of the opinion that Plaintiffs are entitled to an award of attorneys’ fees and costs incurred as a result of this action and have satisfied the factors set forth in Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). Plaintiffs contend they have incurred legal fees in the amount of $146,365. Plaintiffs’ counsel, Douglas Larson and Russell Daniels, submitted affidavits regarding expenses and attorneys’ fees. They attest that a total of 692.60 hours were spent on this case and specified the amount of time spent by each attorney. They further divided their time on the number of hours spent in and out of the courtroom and time spent by Daniels as a law clerk and as an attorney. Larson and Daniels further attest that the hourly billing rates for attorneys involved in this matter range from $75 to $300. They contend that the case was novel, interesting, and complex. Because of this, they believe the requisite skill to properly perform the legal services in this case was high. They further state that they were precluded from other employment due to ee ee App. 60 their work in this action and that there were several undesirable aspects of this litigation. They last contend that a contingency enhancement should be made in this case in the amount of $560,266.66. Edward Cloutman Ill, an attorney in Dallas, submit- ted an affidavit as to the customary range of billing rates in the Dallas area. He asserts that the range of billing rates sought in this matter is reasonable and customary in the Dallas area. Defendants contend that the Prevailing hourly mar- ket rate in the Dallas legal community for similar services by lawyers of reasonably comparable skills, experience, and reputation to that of Larson and Daniels is $225 and $125 respectively. Defendants further contend that Plain- tiffs are not entitled to an enhancement. They also argue that the attorneys’ fees should be reduced because Plain- tiffs did not amend their State court petition to add a § 1983 claim, entitling Plaintiffs to an award of attorneys’ fees, until a year after their state court petition was filed. They maintain that, in that first year of litigation, $37,732.50 in attorneys’ fees were incurred. After examination of the time records provided by Plaintiffs, the Court is of the opinion that 692.60 hours is a reasonable amount of time spent in this case. The Court is further of the opinion that due to the nature of this case the hourly rates of $250 for Larson, $125 for Daniels as an attorney, and $75 for Daniels as a law clerk are reason- able. The time records reflect that Larson spent 540.20 hours on the case while Daniels spent 10.35 hours as a law clerk and 142.05 hours as an attorney. The Court sees no reason to award higher attorneys’ fees for courtroom App. 61 activities or to enhance the attorneys’ fees award due to Plaintiffs’ contingency agreement with their attorneys. Additionally, Plaintiffs’ award should not be reduced by $37,732.50, because Plaintiffs are entitled to attorneys’ fees under their state law claims as well as their federal claims. See Tex. Rev. Crv. Stat. ANN. art. 6252-16a. Based on the hours spent in this case and the respective hourly billing rates Plaintiffs are entitled to an award of attor- neys’ fees in the amount of $153,582.50. However, Plain- tiffs’ counsel only billed for $146,365 for attorneys’ fees. The Court will not award an amount higher than that requested. Accordingly, Defendants Rollins, Hatler, and the City of Dallas are jointly and severally liable for Plaintiffs’ attorneys’ fees in the amount of $146,365. Plaintiffs are also entitled to recover their expenses incurred in this action. They seek $7,105.15. Defendants argue that Plaintiffs should not be entitled to expenses related to the depositions of individuals relevant only to Plaintiffs’ wiretap litigation. Plaintiffs respond that the parties entered into an agreement that discovery in both the wiretap and whistleblower lawsuits would apply to both lawsuits. After examination of the request for expenses, the Court is of the opinion that $7,105.15 is a reasonable amount in light of the parties’ discovery agreement. Therefore, Defendants Rollins, Hatler, and the City of Dallas are jointly and severally iiable for Plaintiffs’ expenses related to this action in the amount of $7,105.15. It is therefore ORDERED that the Motion to Amend Judgment filed by Plaintiffs on February 10, 1995, is granted in part. App. 62 It is FURTHER ORDERED that the Motion for Attor- neys’ Fees and Costs filed by Plaintiffs on February 14, 1995, is granted in part, the Final Judgment will be amended accordingly. Signed this 30th day of March 1995. /s/ Robert B. Maloney Robert B. Maloney U.S. District Judge APPENDIX P 1 ital ll App. 63 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS DALLAS DIVISION RICHARD KIRKS, et al., Plaintiffs, ‘“ No. 3:90-CV-1118-T CITY OF DALLAS, TEXAS, et al., Defendants. FINAL JUDGMENT (Filed Jan. 31, 1995) This action came before the Court on a jury trial on January 3, 1995, Honorable Robert B. Maloney, presiding, and ‘he issues having been duly considered and a deci- sion having been rendered. It is ORDERED and ADJUDGED that on Plaintiff Kirks’s claims pursuant to 42 U.S.C. § 1983, judgment is entered in Kirks’s favor and against Defendants Rollins, Hatler, and the City of Dallas, jointly and severally, in the amount of $75,000 for mental anguish, $80,000 for loss of past earnings, and $675,000 for loss of earning capacity in the future. It is FURTHER ORDERED and ADJUDGED that on Plaintiff Forsyth’s claims pursuant to 42 U.S.C. § 1983, App. 64 judgment is entered in Forsyth’s favor and against Defen- dants Rollins, Hatler, and the City of Dallas, jointly and severally, in the amount of $100,000 for mental anguish. It is FURTHER ORDERED and ADJUDGED that on Plaintiffs’ claims pursuant to 42 U.S.C. § 1983, judgment is entered in Plaintiffs’ favor and against Defendant Rollins in the amount of $125,000 for exemplary damages. It is FURTHER ORDERED and ADJUDGED that on Plaintiffs’ claims pursuant to 42 U.S.C. § 1983, judgment is entered in Plaintiffs’ favor and against Defendant Hatler in the amount of $125,000 for exemplary damages. It is FURTHER ORDERED and ADJUDGED that on Plaintiffs’ claims pursuant to 42 U.S.C. § 1983, judgment is entered in Plaintiffs’ favor and against Defendant City of Dallas in the amount of $125,000 for exemplary dam- ages. It is FURTHER ORDERED and ADJUDGED that on Plaintiff Kirks’s claims pursuant to the Texas Whis- tleblower Act, judgment is entered in Kirks’s favor and against Defendant City of Dallas in the amount of $75,000 for mental anguish, $80,000 for loss of past earnings, and $675,000 for loss of earning capacity in the future. How- ever, these damages may only be recovered by Plaintiff Kirks in the event that he is unable to recover these same damages for his claims brought pursuant to 42 U.S.C. § 1983. It is FURTHER ORDERED and ADJUDGED that on Plaintiff Forsyth’s claims pursuant to the Texas Whis- tleblower Act, judgment is entered in Forsyth’s favor and against Defendant City of Dallas in the amount of App. 65 $100,000 for mental anguish. However, these damages may only be recovered by Plaintiff Forsyth in the event that she is unable to recover these same damages for her claims brought pursuant to 42 U.S.C. § 1983. It is FURTHER ORDERED and ADJUDGED that on Plaintiffs’ claims pursuant to the Texas Whistleblower Act, judgment is entered in Plaintiffs’ favor and against Defendant City of Dallas in the amount of $750,000 for exemplary damages. It is FURTHER ORDERED and ADJUDGED that Plaintiffs Kirks and Forsyth take nothing against Defen- dant Vines. It is FURTHER ORDERED and ADJUDGED that Plaintiffs receive Post-judgment interest at the rate of 7.34% per year from the date of entry of judgment until Paid on the total of the above-listed amounts. It is FURTHER ORDERED and ADJUDGED that all relief not specifically granted herein is denied. Signed this 31st day of January 1995. /s/ Robert B. Maloney Robert B. Maloney U.S. District Judge Pane A Pt aot APPENDIX Q App. 66 19 F.3d 1527 (5th Cir. 1994) Jan FORSYTH, et al., Plaintiffs-Appellants, v. John Holman BARR, et al., Defendants, Mack VINES, Dwight Walker, Willard Rollins, Defendants-Appellees, Vv. CITY OF DALLAS, TEXAS, Defendant-Appellee-Appellant. No. 93-1052. United States Court of Appeals, Fifth Circuit. April 20, 1994. Undercover police officers and informants brought action under Federal Wiretap Act against city and three of its police officers. The United States District Court for the Northern District of Texas, Robert B. Maloney, J., entered summary judgment for city and officers, and undercover officers and informants appealed. The Court of Appeals, Barksdale, Circuit Judge, held that: (1) under- cover officers and informants did not establish that city and officers intentionally intercepted their telephone con- versations; (2) city’s and police officers’ use and dis- closure of information from illegally intercepted telephone communications in conducting preliminary internal affairs investigation of undercover officers, was authorized by Federal Wiretap Act; and (3) district court could disqualify city attorney from representing defen- dant police officer. Affirmed. App. 67 Douglas R. Larson, Mesquite, TX, for Forsyth & Kirks. Edward B. Cloutman, III, Dallas, TX, for Bruton & Bruton. Bill Boyd, Boyd, Veigel & Hance, McKinney, TX, for Vines. Fritz J. Aldrine, II, Asst. City Atty., Katherine Knight, Kathleen Finck, Craig Hopkins, Dallas, TX, for Walker, Rollins and City of Dallas. Appeal from the United States District Court for the Northern District of Texas. Before WISDOM, BARKSDALE, and EMILIO M. GARZA, Circuit Judges. BARKSDALE, Circuit Judge: At issue is a summary judgment awarded the appel- lees (City of Dallas and three of its police officers) on the appellants’ claims under the Federal Wiretap Act, 18 ! U.S.C. §§ 2510-2521: (1) for interception by a third person (appellants claim conspiracy) of the appellants’ telephone conversations, when two of the appellants were police officers involved in an undercover operation; and (2) for the appellees’ disclosure and use of the contents of those intercepted conversations for a police internal affairs investigation, conducted after that information was con- veyed to the police as part of the bases for charges against one of the appellants (an officer). The appellees deny that they were involved in the interception of the communications, but they did disclose App. 68 and use the information in their investigation. In the final analysis, the summary judgment hinges on whether the disclosure and use were permitted by the Act, it being undisputed that they were “appropriate to the proper performance of the [appellee officers’) official duties”, as provided for in § 2517(1) and (2). The linchpin to that question, assuming that the third person illegally inter- cepted the information, is whether the appellee officers’ “obtain[ing]” that information from that person was “by any means authorized by” the Act, as found in § 2517(1) and (2). The meaning of this phrase is far from clear; but the legislative history sanctioning such disclosure and use of illegally intercepted information is crystal clear. The persons whose conversations were intercepted - Jan Forsyth and Richard Kirks (the officers), and Susan and Charles Bruton (the latter being an informant) - appeal from the judgment for the City, Dwight Walker, Willard Rollins, and Mack Vines. The City appeals being requir [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_0849%3A1. Public record. Not legal advice.