Opposition Brief — Serna v. City of San Antonio
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IN THE =n See
Supreme Court of the United States
ONOFRE SERNA,
Petitioner,
V.
CITY OF SAN ANTONIO and AL PHILIPPUS,
Respondents.
On PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
BRIEF IN OPPOSITION
JACQUELINE M. STROH DEBORAH LYNNE KLEIN
Counsel of Record OrFicE OF THE City ATTORNEY
Crorts & CALLAWAY ASSISTANT City ATTORNEY III
A PROFESSIONAL CORPORATION P.O. Box 83996
112 East Pecan Street San Antonio, TX 78283-3966
Suite 800 (210) 207-8950
San Antonio, TX 78205-1517
(210) 299-0289
MARK KOSANOVICH
FITZPATRICK & KOSANOVICH, P.C.
P.O. Box 831121
San Antonio, Texas 78283
(210) 207-7259
Attorneys for Respondents
169167 cr
COUNSEL PRESS
(800) 274-3321 * (800) 359-6859
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QUESTIONS PRESENTED
Whether Petitioner waived the issue whether a plaintiff must
demonstrate, as part of a First Amendment retaliation claim
pursuant to section 1983, that he suffered an adverse
employment action because Petitioner raised the issue for the
first time in his petition for writ of certiorari to this Court.
Whether the precedent of lower appellate courts, following
this Court’s holdings, have correctly inquired, in the context of
First Amendment. retaliation claims arising out of public
employment, whether the plaintiff suffered an adverse personnel
action.
Whether this Court’s decision in Reeves, which merely
reaffirmed the standard of review set forth in Anderson v. Liberty
Lobby, requires a reviewing court to accept a plaintiff's
speculation and subjective perception of harm as evidence of
an adverse employment action, and whether the Fifth Circuit
fully complied with Reeves’s directives.
Whether Petitioner has waived any argument regarding the
adverse employment action analysis conducted by the Fifth
Circuit, apart from its inclusion as an element in the first
instance, and whether, in any event, the Fifth Circuit’s analysis
fulfills the constitutional aims of section 1983.
Whether Petitioner has waived any argument regarding the
timing of Respondents’ motion for judgment as a matter of law,
made before the jury returned a verdict, and whether, in any
event, Respondents’ motion complied with the purposes of Rule
50 and was thus properly considered.
Whether the Fifth Circuit’s judgment can and should be
affirmed on any of a number of other legal grounds asserted by
Respondents below.
il
LIST OF PARTIES
Respondents are satisfied with Petitioner’s list of the parties
and attorneys involved, with one exception. Since his
appearance on behalf of Respondents below, Wallace B.
Jefferson has been appointed as an associate justice to the
Supreme Court of Texas and is no longer serving as
Respondents’ counsel.
ili
TABLE OF CONTENTS
Page
oe eth cues i
PEI TPE OEE Pay il
EES OEE RE eT rE a ill
Table of Cited Authorities ..................... vi
OE SES Ba eee l
oe ig as bibs 60 @ule we l
A. NE). obo wdaswdewsescese l
1. Chief Philippus Has the Discretion to
Transfer Law Enforcement Officers to
Further Public Safety and Department
IE aia il ha SIR Saeed O40 ew ks l
2. Conflicts Arose Within the Downtown
Foot and Bike Patrol Unit, the Unit to
which Officer Serna Had Been
SE 244 4 chi ks ku Adee ae ee ad 2
3. Chief Philippus Created a Special
Committee to Investigate the Conflict in
EN ao a SON eb avs eka weaee 3
4. The Committee Concluded that Officer
Serna Should Be Transferred Because He
Was a Disruptive Presence in the DFU; the
Transfer Was Not Based on Any
Alleged Reports of Violations of Law .. +
iv
Contents
Page
5. Petitioner Persists in His Quest to
Try Lieutenant Griffin Rather Than
Petitioner’s Section 1983 Claim ...... 6
DB. PUPOneGes OW inc ccccceatceicacses 8
Reasons for Denying the Writ ................. 9
1. Serna Has Waived Any Argument Regarding
the Propriety of an Adverse Employment
Element as Part of His Burden of Proof for a
First Amendment Retaliation Claim Under
42 U.S.C. § 1983 by Raising It for the First
We Sh. ko whe hic venusee cous 10
2. All Eleven Federal Circuit Courts, Based on
this Court’s Precedent, Have Held that
in Order to State a First Amendment
Retaliation Claim under 42 U.S.C. § 1983,
the Complainant Must Demonstrate that He
Suffered an Adverse Employment Action
pacha kbs SU e eek enh cke dks 11
3. Serna Argues that the Fifth Circuit Failed to
Properly Apply Reeves, Though His Ultimate
Complaint Is That the Fifth Circuit Refused
to Indulge in Speculation and to Base Its
Decision on Serna’s Subjective Perception of
ey Pe Seer ptr ater ee cs ae
4. Serna Has Failed to Properly Raise an Issue
Regarding the Timing of Respondents’
Pune Te I Sc 6 io SESH rr hee ows 20
Contents
Page
Respondents Raised a Number of Other
Grounds Below, Any One of Which Would
Support the Fifth Circuit’s Decision and
Judgment
Conclusion
vi
TABLE OF CITED AUTHORITIES
Page
Cases:
Anderson v. Liberty Lobby, Inc., 477 U.S. 242
CROP os sb.c0sd0cds8cdcenteusuaneeeeeen i, 9, 15
Bart v. Telford, 677 F.2d 622 (7th Cir. 1982) ..... 13
Bechtel v. City of Belton, Missouri, 250 F.3d 1157
COUGH BOOED onc tccavisetucéescevunvesuss 11
Bishop v. Wood, 426 U.S. 341 (1976) ........... 14
Blair v. Oesterlein Mach. Co., 275 U.S. 220 (1927)
océbes bud Ue beues eeunsenenn sane 10
Board of Dirs. of Rotary Int'l v. Rotary Club of
Duarte, 481 U.S. 537 (1987) .......ccccceess 23
Boeing Co. v. Shipman, 411 F.2d 365 (Sth Cir.
EDGED cccccctentosuewbaceneseeual tresses 15
Breaux v. City of Garland, 205 F.3d 150 (Sth Cir.),
cert. denied, §31 U.S. 816 (2000) ............ 11
Chandris, Inc. v. Latsis, 515 U.S. 347 (1995) ..... 19
Clark v. Long, 255 F.3d 555 (8th Cir. 2001) ...... 17
Click v. Copeland, 970 F.2d 106 (Sth Cir. 1992) .. . 14, 20
Colson v. Grohman, 174 F.3d 498 (Sth Cir. 1999) ... 13
Connick v. Myers, 461 U.S. 138 (1983) ....... 12, 14, 22
vii
Cited Authorities
Daniels v. Williams, 474 U.S. 327 (1986)
Davis v. United States, 417 U.S. 333 (1974)
Duignan v. United States, 274 U.S. 195 (1927) ...
Edwards v. City of Goldsboro, 178 F.3d 231
(4th Cir. 1999)
_ Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1
(1st Cir. 2000)
Fogarty v. Boles, 121 F.3d 886 (3d Cir. 1997) ....
Forsyth v. City of Dallas, 91 F.3d 769 (Sth Cir. 1996),
cert. denied, 522 U.S. 816 (1997)
Fyfe v. Curlee, 902 F.2d 401 (Sth Cir.), cert. denied,
498 U.S. 940 (1990)
Garber v. New York City Police Dep't, 159 F.3d 1346
(2d Cir. 1998)
Givhan v. Western Line Consol. Sch. Dist., 439 U.S.
410 (1979)
_Gorman-Bakos v. Cornell Co-op Extension of
Schenectady County, 252 F.3d 545 (2d Cir.
Granfinanciera, S.A. Vv. Nordberg, 492 U.S. 33
(1989)
vill
Cited Authorities
Page
Hampton v. Borough of Tinton Falls Police Dep't,
ee as OT GH Gs NUD cc dcencncdescoscsa 20
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ....... 25
Harlston v. McDonnell Douglas Corp., 37 F.3d 379
SG EE Nob korea Reda s FAK ees conn sde cre 17
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) ... 17
Heckler v. Campbell, 461 U.S. 458 (1983) ....... 10
Hill v. Clifton, 74 F.3d 1150 (11th Cir. 1996) ..... 22
Ingraham v. Wright, 430 U.S. 651 (1977) ........ 13
Intercity Maint. Co. v. Local 254, Service Employees
Int'l. Union, 241 F.3d 82 (lst Cir.), petition for
cert. filed, 70 U.S.L.W. 3036 (U.S. May 14, 2001)
OE decked cp ksne mas waekahiba nes 17
Izumi Seimitsu Kogyo Kabushiki Kaisha v. United
States Philips Corp., 510 U.S. 27 (1993) ...... 19, 20
Kuykendall v. United Gas Pipe Line Co., 208 F.2d
ee emer Peer ee Tree 16
Laird v. Tatum, 408 U.S. 1 (1972) .............. 17
Layne & Bowler Corp. v. Western Well Works,
Oe We CO beh kceecSciseniereeuere 19, 20
ix
Cited Authorities
Lybrook v. Members of Farmington Mun. Schs. Bd.
of Educ., 232 F.3d 1334 (10th Cir. 2000) ......
Magnum Import Co. v. Coty, 262 U.S. 159 (1923)
Malley v. Briggs, 475 U.S. 335 (1986) ......006:
McGill v. Board of Educ., 602 F.2d 774 (7th Cir.
eer i ere Tere ey eee Cee Lee
McGoldrick v. Compagnie Generale Trans-
atlantique, 309 U.S. 430 (1940) ....----+++-
McMillian v. Monroe County, Ala., 520 U.S. 781
(2) Ee ee a
McPhaul v. Board of Comm'rs of Madison County,
226 F.3d 558 (7th Cir. 2000), cert. denied, 121
S. Ct. 1358 (2001) .. 0... cece ccc ceecencces
Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299
(Pes Peery ce ee Cte ae
Monell v. City Dep’t of Soc. Servs. of City of New York,
436 U.S. 658 (1978) 2... . cece eee reece
Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle,
429 U.S. 274 (1977) .... eee ee cree cree cece
Nunez v. City of Los Angeles, 147 F.3d 867 (9th Cir.
er Ore ere Teen Ye nr Cer
Page
10
22
11
12
11
x
Cited Authorities
Page
Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333
SEED vik cea cane sd ERRO ee hy eee eee eee es 17
Perry v. Sindermann, 408 U.S. 593 (1972) ....... 12
Pickering v. Board of Educ., 391 U.S. 563
CRE 5 knoe eene eer esa ein ees ‘2, 43, 14, 73
Pierce v. Texas Dep't of Criminal Justice, 37 F.3d
1146 (Sth Cir. 1994), cert. denied, 514 U.S. 1107
by 2 PT ae ee BAG te ek Oe er Perera oe 14
Powers v. Summers, 226 F.3d 815 (7th Cir. 2000) ... 11
Quinn v. Southwest Wood Prods., Inc., 597 F.2d
PE Re COTE osncnespavceeetnaneeies 21
Ramos v. Davis & Geck, Inc., 167 F.3d 727 (Ast Cir.
SU Xd ts aie hc oc ene ea es ew 17
Rankin v. McPherson, 483 U.S. 378 (1987) ...... 12, 13
Reeves v. Sanderson Plumbing Prods., Inc., 530 US.
eee aire pee rte oy rr re 1, 9, 15, 16
Rice v. Sioux City Mem'l. Park Cemetery, 349 U.S.
Be Ree cant Lapa ey ama ae 18, 19
Roberts v. United States Jaycees, 468 U.S. 60
Le) eres ee ye gn oy yee mee ae
Rogers v. Miller, 57 F.3d 986 (11th Cir. 1995) .... 12
xi
Cited Authorities ~
Rutan v. Republican Party of Illinois, 497 U.S. 62
(1990)
Sharp v. City of Houston, 164 F.3d 923 (Sth Cir.
Southard v. Texas Bd. of Criminal Justice, 114 F.3d
539 (Sth Cir. 1997)
Sowards v. Loudon County, Tenn., 203 F.3d 426
(6th Cir.), cert. denied, 531 U.S. 875 (2000) ...
Streber v. Hunter, 221 F.3d 701 (Sth Cir. 2000) ...
Thomsen v. Romeis, 198 F.3d 1022 (7th Cir. 2000)
Thurber Corp. v. Fairchild Motor Corp., 269 F.2d
841 (Sth Cir. 1959)
United States v. Alvarez-Sanchez, 511 U.S. 350
(1994)
United States v. Bayer, 331 U.S. 532 (1947)
United States v. Johnston, 268 U.S. 220 (1925) ...
Waters v. Churchill, 511 U.S. 661 (1994)
Wilcox v. State Farm Mut. Auto. Ins. Co., 253 F.3d
1069 (8th Cir. 2001)
Page
11
21
11
16
10
16
19
12
16
xii
Cited Authorities
Page
Withiam v. Baptist Health Care of Oklahoma, Inc.,
96: F.36 SE1 (10th Cis. 1996) ono ciccccswesess 11,12
Wygant v. Jackson Bd. of Educ., 476 U.S. 267
CSE ¢6545 04nd 4 Cob aes chess sea rieeee 12
United States Constitution:
ee Seer reer er eee Te err S passim
Statutes:
Se Wits 6 ec E 5ii ic c6 2 hea DKS l
Rt ee ee ee er eT Pee Or st passim
Tex. Gov’t Cope § 554.002 (Vernon Supp. 2001) ... 1
Rules:
PG Be Me Pe esi ockcecie eas ass i, 15, 16, 17, 20
ee ON ae Brrr are ere rer eee Rar 15
£6 . . 19
Respondents City of San Antonio and Al Philippus
respectfully request that this Court deny the petition for writ
of certiorari seeking review of the Fifth Circuit’s opinion in
this case. That opinion is reported at 244 F.3d 479 (Sth Cir.
2001).
STATUTES INVOLVED
Petitioner asserts in his statement of jurisdiction that his
claims were cognizable in the district court pursuant to
42 U.S.C. § 1681, et seg. for First Amendment violations.
Petitioner also includes 42 U.S.C. § 1681 as one of the
statutes involved. Respondents have been unable to locate
such a provision, and Petitioner’s complaint in the district
court never raised a claim pursuant to this provision.
(CR 4-12, 466-83) Petitioner also lists Texas Government
Code § 554.002 as a relevant provision, but nowhere in his
petition for writ of certiorari does Petitioner complain about
the Fifth Circuit’s ruling with respect to his state law
whistleblower claim. Instead, his entire briefing focuses on
the claim he asserted pursuant to 42 U.S.C. § 1983.
STATEMENT OF THE CASE
A. Statement of Facts
1. Chief Philippus Has the Discretion to Transfer
Law Enforcement Officers to Further Public
Safety and Department Efficiency
This litigation arises out of the employment of Petitioner
Onofre Serna by the San Antonio Police Department
(“SAPD”) and specifically concerns events that occurred in
the Downtown Foot and Bike Patrol Unit (“DFU”) in 1995
and 1996. Respondent Al Philippus is the Chief of Police
for the SAPD, and he has held that position since 1995.
(RR 798) As the Chief of Police, Philippus is given the
discretion to transfer officers within the SAPD for the
2
betterment of the department. (RR 736-37; PX 2) This
discretion is granted to Chief Philippus through the terms of
the Collective Bargaining Agreement entered into between
the City of San Antonio and the San Antonio Police Officers’
Association. (RR 737; PX 2)
2. Conflicts Arose Within the Downtown Foot and
Bike Patrol Unit, the Unit to which Officer Serna
Had Been Assigned
Onofre Serna has been a member of the SAPD since
1985. (RR 140) In 1987, Serna was transferred to the DFU
evening shift. (RR 141) At all times relevant to the lawsuit,
the DFU was commanded by Captain Rudy Vernon and
Lieutenant Harry Griffin. (RR 147, 243-44) The evening shift
was supervised by Sergeant Tom White and Sergeant Hollis
Hester. (RR 84-85, 92) The purpose and philosophy behind
the DFU was to create a highly visible police presence in
the downtown area to discourage crime and to create a safe
environment for citizens and visitors to the downtown area.
(RR 1331-32) A major policing concern was gang activity,
which created problems in the form of violence among gang
members, assaults on others, theft, robbery, public
intoxication, and disorderly conduct. (RR 234, 1334)
Beginning in 1995, a subset of the DFU officers began
complaining of Griffin’s management style. (RR 80, 1531)
Some officers disagreed with Griffin’s policing philosophy;
Griffin criticized officers’ performance of their duties.
(RR 1345-46, 1531, 1636) Griffin, for example, received
complaints from local citizens and business owners that
Officers Lockamy and Aguilar were not paying attention to
their jobs and were, instead, socializing with women in the
downtown area. (RR 1345-46, 1348-49) A few officers
complained that Griffin made racial slurs and other
inappropriate comments and that Griffin was cold and
impersonal. (RR 115, 423, 462, 492-93)
3
In July 1995, four officers, (Aguilar, Lockamy, Vela,
and Johnson), failed to come to Griffin’s assistance during a
juvenile disturbance. (RR 1350-51) After calling for
assistance more than once, backup officers finally arrived.
(RR 1351) As Griffin was walking back to his car, he noticed
that Officers Lockamy and Aguilar were directly across the
street from him but never came to his assistance, their excuse
being that they did not think he was in trouble. (RR 1352-
53) He also learned that Officers Johnson and Vela were on
duty at the time but also did not come to his assistance.
(RR 1353) All four officers were then placed on special
assignment by Griffin and subsequently filed complaints with
the EEO liaison, Officer Linda Taylor. (RR 1354-56; DX 1;
PX 4, 5) Those EEO complaints alleged that Griffin was
discriminating against the officers based upon their national
origin. (PX 4, 5) Serna did not file any such complaint.
After the filing of the EEO complaints, a meeting was
held on July 27, 1995 between the DFU patrol officers and
Griffin to air grievances. (RR 1356) At the meeting, some
of the officers complained about Griffin’s policing
philosophy and criticized the occurrence of practical jokes
in the unit. (RR 544-45, 894-95, 997-98, 1626-27) After this
meeting, the tensions in the DFU between officers and their
supervisors continued to grow, coming to a head on the
evening of May 28, 1996, when an alleged altercation
occurred between another officer and Sergeant White.
(RR 1361, 1367-68) These occurrences prompted Chief
Philippus to take action.
3. Chief Philippus Created a Special Committee to
Investigate the Conflict in the DFU
Chief Philippus created a blue ribbon committee
(“the Committee”) to investigate the DFU as a whole and
expose any problems in the unit. (RR 769, 771, 821; PX 12)
The Committee was headed by Deputy Chief Albert Ortiz.
ee eas a
4
(RR 769-70, 821; PX 12) Ortiz selected other members of
the Committee based on their stellar reputations. (RR 855-
56) The Committee did not focus its attention on any singular
member of the DFU. (RR 822, 864, 1426, 1429, 1444, 1445,
1489, 1524-25, 1572, 1589-90, 1625) Instead, each officer
of the DFU was questioned separately by a person of the
next higher rank. (RR 862) The Committee asked questions
of a general nature, seeking a broad picture of the problems
in the DFU. (RR 863-64, 1427, 1431, 1488, 1490-92, 1522-
23, 1572, 1589, 1626)
4. The Committee Concluded that Officer Serna
Should Be Transferred Because He Was a
Disruptive Presence in the DFU; the Transfer
Was Not Based on Any Alleged Reports of
Violations of Law
After completing the interviews, the Committee
reconvened to discuss its findings and to make suggestions
on a proposed course of remedial action. (RR 773, 826, 860)
Chief Philippus did not meet with the committee members
until after they had completed their investigation. (RR 824,
1440) The Committee found several management problems
in the unit. (RR 775, 1432-36, 1493-96, 1525-26, 1574-76;
PX 3; DX 10) The Committee found that Officers Lucio
Aguilar and George Lockamy were viewed by many
as having disruptive influences in the DFU, and that
Serna had frequently encouraged their disruptive conduct.
(RR 783-84, 1436-38, 1492-93, 1526-27; PX 3; DX 10)
The Committee also noted that Serna’s fellow officers
specifically named him as a source of trouble at the DFU.
(RR 783, 1436-39, 1492-93, 1496, 1526, 1527-29, 1599-
1600; PX 3; DX 10) For example, those interviewed by the
Committee stated that Serna used peer pressure to persuade
other officers to bring down productivity and that he showed
disrespect for his supervisors. (RR 1439, 1493, 1496,
1528) Many officers described Serna as encouraging
5
insubordination and behaving in an unprofessional and
childlike manner. (RR 1174-77, 1191, 1193-94, 1229, 1238,
1247-50, 1284-87) The complaints made by Serna with
respect to Griffin and overheard by other officers had nothing
to do with alleged civil rights violations; Serna sounded like
a disgruntled employee rather than a champion of civil rights.
Based on these findings, the Committee determined that the
transfer of Serna from the DFU would be in the best interest
of the department. (RR 788-89, 1441, 1497, 1578-79, 1601)
The Committee also recommended the transfer of several
other officers, including Griffin, Aguilar, Lockamy, and
Sergeant White. (RR 1441-42, 1447-48, 1497, 1558, 1601)
Based on these recommendations, Chief Philippus, under
the authority granted by the Collective Bargaining
Agreement, ordered the transfers. (RR 788-89, 826, 1325-
26, 1451-52) Serna was transferred on July 3, 1996.
(RR 163; DX 16; RE 17) Neither the recommendations of
the Committee nor the action taken by Chief Philippus in
transferring Serna was based on any alleged reports by Serna
of violations of law or in retaliation for engaging in
constitutionally-protected activity. (RR 788-89, 795-96, 826,
829, 848, 1445-46, 1450-51, 1482, 1497-1500, 1517-18,
1528, 1543-44, 1578, 1599-1601, 1632-33) Following his
transfer, the Committee prepared a summary report of its
findings. (PX 3; DX 10)
Serna filed a grievance with the San Antonio Police
Officers’ Association (“SAPOA”) on July 24, 1996. (PX 18)
Although the basis of this litigation is Serna’s transfer, Serna
‘had not, as of the time of trial, made a request for transfer
from his current assignment. (RR 338-39) Following the
transfers recommended by the Committee, the problems
in the DFU subsided, and the unit began to run efficiently.
(RR 829-30, 1451-52, 1580, 1633-34)
6
5. Petitioner Persists in His Quest to Try Lieutenant
Griffin Rather Than Petitioner’s Section 1983
Claim
Onofre Serna initiated this litigation claiming that he
was retaliated against hecause he made reports of violations
of law and for exercising his First Amendment rights of
freedom of speech and freedom of association. (CR 4-12,
466-83) The majority of the testimony before the trial court,
however, had nothing to do with Serna’s claim of retaliation.
The testimony at trial centered on the following
accusations: that Griffin had a different management style
than his predecessors; that Griffin preferred the officers on
the day shift; that the night shift felt like stepchildren; that
Griffin referenced a Time magazine cover entitled “male,
white and scared”; and that Griffin made racial slurs.
(RR 79-81, 88-89, 91, 115) Other complaints focused on the
policing philosophies of Griffin, that he referred to the night
shift as lazy, that Griffin had favorites in the department,
and that he made offensive remarks. (RR 378, 383, 386-87,
423-26, 462, 465) Some witnesses complained about
Griffin’s management style and personal experiences with
Griffin. (RR 461-62, 581-87, 593-96, 588-93) One officer
commented on Griffin’s disparate treatment of the daylight
shift and the evening shift and on the lieutenant’s cold and
impersonal nature, while another testified about problems
in obtaining a lock for the women’s locker room. (RR 462,
492-93, 673-76) The accusations against Griffin — that he
encouraged the removal of gangs and the homeless from the
downtown area — peppered and were interwoven with the
overwhelming aim of the trial testimony, which was to air
personal grievances against Griffin.
The great majority of the time spent questioning Chief
Philippus concerned the same orders and instructions alleged
to have been given by Griffin; questioning also focused on
7
the Chief’s failure to investigate the allegations made against
Griffin and whether the Chief was correct in his
determination that the DFU was not performing its proactive
function. (RR 759-69, 831-41, 850) Serna’s questioning of
Chief Philippus had nothing at all to do with his reasons for
Serna’s transfer.
Serna himself testified that his problems with Griffin
stemmed, at least in part, from Griffin’s “always coming
down on us because he wanted us to produce numbers.”
(RR 223) Later, he testified that “we were the stepchildren
of the Foot Patrol, our lieutenant at that time, which was
Lieutenant Griffin, would do whatever he could to make our
shift as uncomfortable as possible.” (RR 247) Serna
continued to complain about Griffin’s comparing the day
shift with the night shift and that he was “constantly on us.”
(RR 286-87) Other witnesses were questioned about their
failure to investigate the allegations against Griffin, the
manner in which they conducted the Blue Ribbon
Committee’s investigation, and about squabbles between
Griffin and other officers. (RR 868-75, 905, 909-11, 917-
20) The problems identified by the Committee were human
relations problems and management issues within the DFU.
(RR 1479, 1594-95)
Serna’s witnesses provided no information relative to
Serna, any complaints he may have made, or the reason for
his transfer from the DFU. Witness after witness admitted
that they had no personal knowledge why Serna was
transferred and could not speak about any retaliation or any
reports Serna may have made regarding violations of the law.
(RR 387-89, 408, 412, 431-32, 483-85, 535, 546-47, 566-
67, 666, 669, 704-05) Thus, Serna, contrary to trying any
claims of retaliation against him in violation of either the
Texas Whistleblower Act or the federal constitution, was
attempting to have the jury rule on internal employment
squabbles and the actions taken by Chief Philippus to deal
8
with them. There is no evidence that the Chief's decision to
transfer Serna was precipitated by Serna’s speech, his
preclusion from associating with other officers, or his
reporting illegal orders by superiors.
B. Proceedings Below
Petitioner filed suit in state district court against the City
of San Antonio alleging a violation of the Texas
Whistleblower statute. (CR 1-3) He alleged that the City
retaliated against him by transferring him from the
Downtown Foot and Bike Patrol Unit of the San Antonio
Police Department for reporting alleged violations of law
by Lieutenant Harry Griffin. (CR 4-12, 466-83) Petitioner
later amended his state court petition to join Chief of Police
Al Philippus in the suit and assert a cause of action for
retaliation for the exercise of his First Amendment rights of
free speech, freedom of association, and substantive due
process. Respondents timely removed the case to federal
court. (CR 1-12, 466-83) Petitioner also pled that Respondent
Philippus deprived him of equal protection, due process
rights, and state constitutional rights. (CR 4-12, 466-83)
All claims but those based on the First Amendment and the
Texas Whistleblower statute were disposed of by summary
judgment. (CR 443-57)
Those claims proceeded to trial, and the jury returned a
verdict for Petitioner. (CR 778-89) Prior to the rendition of
the jury’s verdict, Respondents made a motion for judgment
as a matter of law, which the district court considered,
expressly overruling Petitioner’s claims of waiver. (RR 1795)
The jury awarded Petitioner a total of $500,000, awarding
an equal sum for the Whistleblower and First Amendment
claims. (CR 778-89) The total award was later reduced by
the district court to $475,000. (CR 779) Respondents timely
filed their post-judgment motions, which were denied by the
district court. (CR 822-37, 924-28, 1037-59, 1102)
9
Respondents then appealed to the United States Court of
Appeals for the Fifth Circuit. (CR 1103-05, 1256-58, 1364-
67) A three-judge panel of the Fifth Circuit reversed the trial
court’s judgment. The panel held that Petitioner failed to
satisfy his burden in both his First Amendment claim and
his state whistleblower action to establish that the
government took an adverse employment action against him
in retaliation for certain complaints and association with
other officers. Serna v. City of San Antonio, 244 F.3d 479
(5th Cir. 2001). Petitioner filed a petition for rehearing and
a petition for rehearing en banc, both of which were denied.
REASONS FOR DENYING THE WRIT
This Court should deny Serna’s petition for writ
of certiorari because: (1) Serna has waived any argument
against the inclusion of an adverse personnel action.as
an element of his First Amendment retaliation claim under
42 U.S.C. § 1983 by raising it for the first time in this Court;
(2) there is no conflict in decisional case law because all
eleven federal circuit courts have determined that in order
for a plaintiff to state a First Amendment retaliation claim
pursuant to 42 U.S.C. § 1983, the plaintiff must demonstrate
that he suffered a constitutional injury, i.e., an adverse
employment action; (3) there is no conflict with this Court’s
precedent because the decisions of lower appellate courts,
including cases decided by the Fifth Circuit, were based on
opinions from this Court cautioning that federal courts have
no business monitoring a public employer’s employment
decisions absent injury to a constitutional degree; and
(4) this Court’s decision-in Reeves v. Sanderson Plumbing
Prods., Inc., 530 U.S. 133 (2000) was an affirmance of the
standard of review as set forth in Anderson v. Liberty Lobby,
which would not, contrary to Serna’s representation, require
a reviewing court to indulge and treat as evidence a
complainant’s subjective perception of harm.
10
1. Serna Has Waived Any Argument Regarding the
Propriety of an Adverse Employment Element as Part
of His Burden of Proof for a First Amendment
Retaliation Claim Under 42 U.S.C. § 1983 by Raising It
for the First Time to This Court
“This court sits as a court of review.” Duignan v. United
States, 274 U.S. 195, 200 (1927). “It is only in exceptional cases
coming here from the federal courts that questions not pressed
or passed upon below are reviewed.” /d. Neither in the district
court nor in the Fifth Circuit did Petitioner complain about the
inclusion of an adverse personnel element as part of his burden
of proof, though the issue of whether Serna’s lateral transfer
constituted an adverse personnel action was briefed by both
parties in both courts. See id. (refusing to review constitutional
issue not raised in lower appellate court).' This Court has
steadfastly adhered to this principle, including contexts where
the new argument was being raised as an alternative ground for
affirmance of the lower court’s judgment. See, e.g., United States
v. Alvarez-Sanchez, 511 U.S. 350, 360 n.5 (1994) (same);
Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 38-39 (1989)
(same); Heckler v. Campbell, 461 U.S. 458, 469 n.12 (1983)
(same); McGoldrick v. Compagnie Generale Transatlantique,
309 U.S. 430, 433-34 (1940); Blair v. Oesterlein Mach. Co.,
275 U.S. 220, 225 (1927) (same).
There is nothing exceptional about this case that would
allow Petitioner to raise an issue for the first time in this Court,
depriving the lower courts of an opportunity to review the issue
and depriving Respondents of their opportunity to consider and
counter the argument. Petitioner did not raise the issue in the
district court, and the issue was never raised in the lower
appellate court, though Serna briefed whether he suffered a
1. In fact, as noted in the Fifth Circuit’s decision, Serna argued
that the lower appellate court should define adverse transfer for the
purposes of the Texas Whistleblower statute by looking to its case
law under 42 U.S.C. § 1983. Serna, 244 F.3d at 483.
11
constitutional injury with reference to existing Fifth Circuit
precedent and the adverse employment action element. Even
if this Court were to consider Petitioner’s newly-asserted
claim, i.e., that he need show no adverse personnel action to
recover under section 1983, his claim is without merit.
2. All Eleven Federal Circuit Courts, Based on this
Court’s Precedent, Have Held that in Order to
State a First Amendment Retaliation Claim under
42 U.S.C. § 1983, the Complainant Must Demonstrate
that He Suffered an Adverse Employment Action
Despite Serna’s assertion of a conflict between the Fifth
and other circuits regarding the inclusion of an adverse
personnel action element in a First Amendment retaliation
claim, all eleven federal circuit courts of appeals include
this as an element in the plaintiff's burden of proof.
See, e.g., Figueroa-Serrano v. Ramos-Alverio, 221 F.3d 1,
7 (1st Cir. 2000); Gorman-Bakos v. Cornell Co-op Extension
of Schenectady County, 252 F.3d 545, 553 (2d Cir. 2001);
Fogarty v. Boles, 121 F.3d 886, 888 (3d Cir. 1997); Edwards
v. City of Goldsboro, 178 F.3d 231, 245-46 (4th Cir. 1999);
Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir.),
cert. denied, 531 U.S. 816 (2000); Sowards v. Loudon
County, Tenn., 203 F.3d 426, 431, 433 (6th Cir.), cert. denied,
531 U.S. 875 (2000); Thomsen v. Romeis, 198 F.3d 1022
(7th Cir. 2000)?; Bechtel v. City of Belton, Missouri, 250
F.3d 1157, 1162 (8th Cir. 2001); Nunez v. City of Los
Angeles, 147 F.3d 867, 874-75 (9th Cir. 1998); Withiam v.
2. The Seventh Circuit’s approach has been somewhat split.
Compare McPhaul v. Board of Comm'rs of Madison County, 226
F.3d 558, 566 (7th Cir. 2000), cert. denied, 121 S. Ct. 1358 (2001),
with Powers v. Summers, 226 F.3d 815, 820 (7th Cir. 2000)
(appearing to reject adverse employment action element in section
1983 claim, though following with statement that action taken by
government must be “sufficiently adverse to deter the exercise” of
constitutional rights).
12
Baptist Health Care of Oklahoma, Inc., 98 F.3d 581, 583
(10th Cir. 1996); Rogers v. Miller, 57 F.3d 986, 992
(11th Cir. 1995).
The genesis of each holding can be traced back to the
decisions of this Court in the context of First Amendment
retaliation claims made by public employees, all of which
involved, and some expressly acknowledged the need for,
an adverse employment action. See Waters v. Churchill, 511
U.S. 661, 665-66 (1994) (involving discharge of government
employee for allegedly criticizing hospital administration);
Rutan v. Republican Party of Illinois, 497 U.S. 62, 73 (1990)
(expressing concern over employees being placed in “dead-
end positions” with no opportunity for progress, which the
Court explained would be adverse); Rutan, 497 U.S. at 99-
100 (Scalia, J., dissenting) (referencing the requirement of
an adverse employment action and citing to both Pickering
and Connick); Rankin v. McPherson, 483 U.S. 378,
395 (1987) (Scalia, J., dissenting) (recognizing that
First Amendment protects against “adverse personnel
decision{s]”); Wygant v. Jackson Bd. of Educ., 476 U.S. 267,
282-83 (1986) (“Denial of a future employment opportunity
is not as intrusive as loss of an existing job”); Connick v.
Myers, 461 U.S. 138, 140, 142 (1983) (assistant district
attorney discharged for circulating a questionnaire
concerning internal office affairs; explaining that “state
cannot condition public employment on a basis that infringes
the employee’s constitutionally protected interest in freedom
of expression”); Givhan v. Western Line Consol. Sch. Dist,
439 U.S. 410, 411-12 (1979) (teacher dismissed following
conversations with principal); Mt. Healthy City Sch. Dist.
Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84 (1977) (action
taken against the employee was 2 decision not to rehire him
based on constitutionally-protected speech); Perry v.
Sindermann, 408 U.S. 593, 595 (1972) (nonrenewal of
employment contract alleged to be based on public criticism
of college administration); Pickering v. Board of Educ.,
13
391 U.S. 563, 564, 572 (1968) (teacher dismissed for sending
letter to local newspaper criticizing schools’ past revenue
proposals; “it is essential that [teachers] be able to speak out
freely on such questions without fear of retaliatory
dismissal”).
Relying on footnote 8 in this Court’s Rutan decision,
Petitioner asserts that section 1983 provides a claim “even
[for] an act of retaliation as trivial as failing to hold a birthday
party for a public employee. . . when intended to punish her
for exercising her free speech rights.” Rutan, 497 U.S. at 75
n.8. However, courts have come to terms with the statement
in Rutan as dictum. For example, in Colson v. Grohman,
174 F.3d 498, 510-11 (Sth Cir. 1999), the Fifth Circuit
explained why this statement should not control. First, the
Supreme Court was quoting the lower court in Rutan, which
in turn was erroneously characterizing its own decision in
Bart v. Telford, 677 F.2d 622 (7th Cir. 1982). Furthermore,
the Fifth Circuit recognized that the body of the Rutan
opinion stressed that the case before it involved “significant
penalties . . . imposed for the exercise of rights guaranteed
by the First Amendment.” Colson, 174 F.3d at 511. Thus,
the Fifth Circuit requires more than a trivial act to establish
constitutional harm. Jd. See also Lybrook v. Members of
Farmington Mun. Schs. Bd. of Educ., 232 F.3d 1334, 1340
(10th Cir. 2000) (explaining that Rutan’s footnote 8 has been
interpreted as non-controlling dicta). Following Serna’s lead,
every unwanted glance would rise to a constitutional
violation if based on what an employee said. But see
Ingraham v. Wright, 430 U.S. 651, 674 (1977) (“There is, of
course, a de minimis level of imposition with which the
Constitution is not concerned”).
Moreover, the decision in Serna echoes the concerns
expressed by this Court against subjecting every decision
made by a government employer to federal court scrutiny.
Rankin v. McPherson, 483 U.S. 378, 384 (1987) (explaining
14
that “public employers are employers, concerned with the
efficient function of their operations; review of every
personnel decision made by a public employer could, in the
long run, hamper the performance of public functions”);
Connick, 461 U.S. at 143 (“government offices could not
function if every employment decision became a
constitutional matter”); Bishop v. Wood, 426 U.S. 341, 349
(1976) (federal courts are “not the appropriate forum in which
to review the multitude of personnel decisions that are made
daily by public agencies”).
A major problem with Petitioner’s argument is that, on
the one hand he recognizes that Pickering requires
government action that is sufficiently severe that it could be
said to inhibit speech, while on the other he rejects an analysis
that requires the government’s action to be “adverse.” If the
action is not adverse, it does not have the potential to chill
speech. In fact, Petitioner goes so far as to argue that
Pickering and its progeny require only that courts determine
whether the speech is of public concern and then whether
the government’s interests as employer outweigh the
individual’s interests. That analysis completely omits any
requirement that speech be chilled. Petitioner also
erroneously implies that the Fifth Circuit rejects the inclusion
of transfers as potentially adverse employment actions. The
circuit’s precedent demonstrates otherwise. See, e.g., Click
v. Copeland, 970 F.2d 106 (Sth Cir. 1992). Instead, the Fifth
Circuit, acknowledging that transfers have the potential to
chill speech, ultimately determined that Petitioner’s transfer
was not adverse as a matter of law, distinguishing its earlier
decisions. Moreover, the “adverse personnel action” element
is key to determining whether the employment action was
intended to be punitive. See, e.g., Pierce v. Texas Dep't of
Criminal Justice, 37 F.3d 1146, 1150 (Sth Cir. 1994), cert.
denied, 514 U.S. 1107 (1995). Finally, as explained below,
Petitioner’s request for review boils down, not to a wish that
First Amendment law be reviewed generally, but to a desire
ee
15
simply that his own transfer be deemed adverse. See Petition
at 10-11 (discussing allegations confined to police
departments) and at 16-17 (complaining that an earlier Fifth
Circuit case held a transfer, “much less egregious” than his
own to be adverse).
3. Serna Argues that the Fifth Circuit Failed to Properly
Apply Reeves, Though His Ultimate Complaint Is
That the Fifth Circuit Refused to Indulge in
Speculation and to Base Its Decision on Serna’s
Subjective Perception of Harm
In Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S.
133, 150 (2000), this Court addressed the appropriate
standard and scope of review in the context of Rule 50
motions for judgment as a matter of law and analogous Rule
56 motions for summary judgment. This Court held that an
appellate court, in reviewing such motions, “should review
all of the evidence in the record” and “must draw all
reasonable inferences in favor of the nonmoving party,”
though the court “may not make credibility dete:minations
or weigh the evidence.” Jd. “Thus, although the court should
review the record as a whole, it must disregard all evidence
favorable to the moving party that the jury is not required to
believe.” Jd. at 151. “That is, the court should give credence
to the evidence favoring the nonmovant as well as that
‘evidence supporting the moving party that is uncontradicted
and unimpeached, at least to the extent that that evidence
comes from disinterested witnesses.’ ” Jd.
In setting forth this standard, the Reeves Court relied
upon, and in fact quoted from, Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 254-55 (1986), and also cited the Fifth
Circuit’s decision in Boeing Co. v. Shipman, 411 F.2d 365,
374 (Sth Cir. 1969) (en banc). Thus, contrary to Petitioner’s
implications, the standard of review in this context has been
clear for many years and need not be reaffirmed again only
16
one year after Reeves was decided. Nor is the Fifth
Circuit’s partial quote from Reeves demonstrative of a
misunderstanding or misapplication of the appropriate
standard of review. In Serna, the Fifth Circuit quoted the
critical portion of Reeves, and it need not have set forth the
Reeves Court’s entire discussion in order to stem an attack
on its decision.
The only relevant inquiry is whether the Fifth Circuit
properly applied Reeves, not whether it correctly quoted the
standard, and the opinion demonstrates that the Fifth Circuit
meticulously reviewed all of the evidence in the record giving
credence to it where credence was due. Moreover,
Petitioner’s briefing of the review standard shows that it is
he who misunderstands its application. Petitioner emphasized
that part of the Reeves standard, explaining that an appellate
court must give credence to the evidence favoring the moving
party that is uncontradicted and unimpeached, at least to the
extent that that evidence comes from disinterested witnesses.
Petitioner understands this phrase to mean that only
testimony from disinterested witnesses could be considered.
However, the passage, by its express language, leaves open
the possibility that uncontroverted testimony from an
interested witness could be given credence. Wilcox v. State
Farm Mut. Auto. Ins. Co., 253 F.3d 1069, 1070-71 (8th Cir.
2001).
Petitioner also misconstrues case law regarding whether
employees are considered interested witnesses for purposes
of the Reeves standard of review. Neither United States v.
Bayer, 331 U.S. 532 (1947), a criminal case, nor Thurber
Corp. v. Fairchild Motor Corp., 269 F.2d 841 (Sth Cir. 1959),
stand for the proposition that the testimony of an employee
will be considered testimony of an interested witness, and
thus discounted, in the context of the standard of review for
a Rule 50 motion. Furthermore, in Kuykendall v. United
Gas Pipe Line Co., 208 F.2d 921, 923-24 (Sth Cir. 1953),
17
the Fifth Circuit, relying on Texas and federal case law, held
that the testimony of witnesses could not be disregarded by
the jury simply because they were employees of the
defendant. Citing Pennsylvania R. Co. v. Chamberlain, 288
U.S. 333, 394 (1933).
In any event, the only evidence offered by Petitioner to
satisfy the adverse personnel action element was his own
speculation and subjective perception. While the nonmovant
in the context of a Rule 50 motion receives the benefit of all
reasonable inferences that may be drawn from the evidence,
“those inferences may not be based solely on speculation.”
Clark v. Long, 255 F.3d 555, 557 (8th Cir. 2001); see also
Intercity Maint. Co. v. Local 254, Service Employees Int'l.
Union, 241 F.3d 82, 86 (1st Cir.), petition for cert. filed,
70 U.S.L.W. 3036 (U.S. May 14, 2001) (No. 00-1764).
Moreover, this Court and other circuit courts have
consistently required a plaintiff to offer more than his
subjective perception of harm as evidence of discrimination
or retaliation. See, e.g., Harris v. Forklift Sys., Inc.,510 U.S.
17, 21 (1993) (“Conduct that is not severe or pervasive
enough to create an objectively hostile or abusive work
environment — an environment that a reasonable person
would find hostile or abusive,” is beyond the purview of
the ADEA); Laird v. Tatum, 408 U.S. 1, 13-14 (1972)
(“[a]llegations of a subjective ‘chill’ are not an adequate
substitute for a claim of specific present objective harm or a
threat of specific future harm”); Ramos v. Davis & Geck,
Inc., 167 F.3d 727, 731 (1st Cir. 1999) (objective standard
applies to determine whether constructive discharge
occurred); Garber v. New York City Police Dep't, 159 F.3d
1346 (2d Cir. 1998) (unpublished) (subjective perception
insufficient to establish claim pursuant to section 1983);
Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382
(8th Cir. 1994) (refusing to allow plaintiffs subjective
perception to control whether reassignment was materially
adverse).
Eke a a ee ne ae a
18
The objective evidence demonstrated that Petitioner
received the same pay and benefits after the transfer that
he had received before the transfer. (RR 1687-90)
Thus, Petitioner’s transfer was a lateral transfer, not a
demotion. (RR 1642) In fact, Serna testified that “[t]he only
different way that I was treated, sir, is that I was transferred
involuntarily.” (RR 333) Nothing negative regarding the
transfer was ever placed in Serna’s personnel file. (RR 826-
27) He remained assigned to the same Central Substation.
(RR 169, 186-87, 330-31) Although Serna offered opinion
testimony that he was transferred to a “less prestigious” unit,
others testified that this was not the case. (RR 1150, 1234,
1482, 1642) Serna even acknowledged that wanting to work
in the downtown unit from which he was transferred was an
individual preference. (RR 338) Serna conceded that he has
never sought a transfer from his present assignment to
another unit nor asked for a different shift. (RR 338-39, 341)
Although Serna testified that he was labeled as a “silent
instigator” and that this label followed him and prevented a
promotion, Serna never identified any officer who held this
opinion of him nor any officer who thought less of his
abilities. (RR 170, 175, 415, 440, 517-18, 666-67, 719)
The transfer had no effect on Serna’s ability to promote, per
the terms of the collective bargaining agreement. (RR 524-
25, 828, 1703; PX 2) All record references characterizing
Serna’s transfer as adverse were to Serna’s own testimony.
(RR 166, 168, 169, 333, 337, 341)
A review of Petitioner’s discussion of the evidence
presented on this claim reveals that he wants a rehearing of
what he has claimed elsewhere is an issue that must be
decided on a case-by-case basis. This Court sits neither to
give the defeated party in the lower appellate court another
hearing, nor to resolve issues of importance to the individual
litigants alone, but rather to decide cases “involving
principles the settlement of which is of importance to the
public, as distinguished from that of the parties.” Rice v.
19
Sioux City Mem'l. Park Cemetery, 349 U.S. 70, 73-75, 79
(1955); Magnum Import Co. v. Coty, 262 U.S. 159, 163
(1923); Layne & Bowler Corp. v. Western Well Works, 261
U.S. 387, 393 (1923). See also United States v. Johnston,
268 U.S. 220, 227 (1925) (“We do not grant a certiorari to
review evidence and discuss specific facts”).
Furthermore, Petitioner once again argues an issue he
has not preserved. Nowhere in his issues presented does he
challenge the adverse personnel standard employed by the
Fifth Circuit, apart from its inclusion as an element in the
first instance. Not only must an issue generally be raised
below to preserve it for review by this Court, but a Petitioner
must present the question for this Court’s review in its
petition for certiorari. /zumi Seimitsu Kogyo Kabushiki
Kaisha v. United States Philips Corp., 510 U.S. 27, 28 (1993)
(“In order to reach the merits of this case, we would have to
address a question that was neither presented in the petition
for certiorari nor fairly included in the one question that was
presented. Because we will consider questions not raised in
the petition only in the most exceptional cases, and because
we conclude this is not such a case, we dismiss the writ of
certiorari as improvidently granted”). As this Court
recognized in /zumi, Supreme Court Rule 14.1(a) cautions
that “[{o]nly the questions set forth in the petition, or fairly
included therein, will be considered by the Court.” Jd. at 30-
31. “Faithful application will ... inform those who seek
review here that we continue to strongly ‘disapprove the
practice of smuggling additional questions into a case after
we grant certiorari.’ ” Jd. at 34. See also Chandris, Inc. v.
Latsis, 515 U.S. 347, 353 n.* (1995) (same).
In any event, Petitioner presents no conflict requiring
this Court’s resolution. First, Petitioner asserts a conflict
between the Fifth Circuit’s decision in Serna and other Fifth
Circuit case law, specifically Sharp v. City of Houston, 164
F.3d 923 (Sth Cir. 1999); Southard v. Texas Bd. of Criminal
20
Justice, 114 F.3d 539 (Sth Cir. 1997); Forsyth v. City of
Dallas, 91 F.3d 769 (Sth Cir. 1996), cert. denied, 522 U.S.
816 (1997); Click v. Copeland, 970 F.2d 106 (Sth Cir. 1992);
Fyfe v. Curlee, 902 F.2d 401 (Sth Cir.), cert. denied, 498
U.S. 940 (1990). This Court’s jurisdiction does not extend
to resolve the internal conflicts of a particular circuit court,
Davis v. United States, 417 U.S. 333, 340 (1974), and, in
any event, the Fifth Circuit meticulously detailed its
decisions regarding this element of a section 1983 claim in
the Serna decision itself. Petitioner also asserts that the
decision in Serna conflicts with decisions from the Third
and Seventh Circuits, namely Hamp‘on v. Borough of Tinton
Falls Police Dep't, 98 F.3d 107 (3d Cir. 1996) and McGill
v. Board of Educ., 602 F.2d 774 (7th Cir. 1979). However,
this Court’s review is confined to cases “where there is a
real and embarrassing conflict of opinion and authority
between the Circuit Courts of Appeals.” Layne, 261 U.S. at
393. Serna, Hampton, and McGill all agree on the governing
legal principles, and distinctions can be made between the
circumstances involved in each case. Hampton, 98 F.3d at
116; McGill, 602 F.2d at 779-80.
4. Serna Has Failed to Properly Raise an Issue Regarding
the Timing of Respondents’ Rule 50 Motion
Petitioner raises another argument in the body of his
petition that he did not present in his questions to this Court.
As a result, he has waived review. /zumi, 510 U.S. at 28.
Moreover, Petitioner’s one-paragraph reference to the timing
of the Rule 50 motion, near the end of its petition for writ of
certiorari, is wholly inadequate to raise the issue for this
Court’s review. See Daniels v. Williams, 474 U.S. 327, 341
n.17 (1986) (holding that state-action objection in one
sentence constitutes nothing more than a bare reference,
which is inadequate to mount a challenge). In any event, the
Fifth Circuit explained that the purposes of Rule 50 were
met where Respondents raised numerous challenges to the
21
sufficiency of the evidence and reasserted those challenges
before the jury returned with a verdict, and also relied on
' the district court’s express rejection of Petitioner’s waiver
argument. Serna, 244 F.3d at 481-82. There was no error.
See also Streber v. Hunter, 221 F.3d 701, 721 (5th Cir. 2000);
Quinn v. Southwest Wood Prods., Inc., 597 F.2d 1018, 1025
(Sth Cir. 1979).
5. Respondents Raised a Number of Other Grounds
Below, Any One of Which Would Support the Fifth
Circuit’s Decision and Judgment
In the Fifth Circuit, Respondents raised a number of other
legal bars to Petitioner’s claims pursuant to section 1983,
all of which would support the Fifth Circuit’s judgment
rendering judgment in favor of Respondents or, at the very
least, a new trial. Among those arguments were that: (1) there
was no decision by someone with final policymaking
authority; (2) Petitioner did not speak on a matter of public
concern; (3) Petitioner did not offer proof of a
constitutionally-protected association; (4) Respondents’
interest in promoting public service outweighed Petitioner’s
free speech and free- association concerns; (5) no causal
connection existed between Petitioner’s transfer and any
constitutionally-protected activity; (6) Chief Philippus was
entitled to qualified immunity as a matter of law; and
(7) Petitioner cannot recover a monetary award for the
abstract value of a constitutional right.
A municipality may not be held vicariously liable for
the actions of its employees in a suit brought under section
1983, but, rather, liability will attach only if an injury is
caused in the execution of a local government’s policy or
custom. Monell v. City Dep't of Soc. Servs. of City of New
York, 436 U.S. 658, 694 (1978). A single action by a
municipal official can constitute the official policy of the
municipality only if the municipal official possesses final
22
policymaking authority regarding the action in question.
McMillian v. Monroe County, Ala., 520 U.S. 781, 784-85
(1997). Where top-level employees’ decisions are subject to
meaningful administrative review, their decisions are not
final, and these employees are not considered to have final
policymaking authority. See, e.g., Hill v. Clifton, 74 F.3d
1150, 1151 (11th Cir. 1996) (holding that where City
Manager, rather than Police Chief, had final policymaking
authority, there could be no liability because City Manager
did not approve basis for Police Chief’s actions).
The collective bargaining agreement between the City of San
Antonio and the San Antonio Police Officers’ Association
expressly states that the Chief's transfer of employees within
the Department is subject to review by the City Manager.
(PX 2 at 18) Thus, Chief Philippus did not have final
policymaking authority, and, as a result, there can be no
municipal liability under section 1983 for his decision to
transfer Serna from the DFU.
Nor did Serna speak on a matter of public concern. Connick,
461 U.S. at 142. The catalyst for Serna’s transfer was his
reputation for insubordination and disruption of police protocol.
(RR 1528) The content of Serna’s alleged complaints were
largely personal, made from the perspective of an employee
dissatisfied with his employment situation. His apparent
problem was not with Griffin’s orders per se, but with the fact
that they came from Griffin. Serna testified that he was trying
to settle the dispute he had with his supervisors within his own
unit. (RR 270) All of his alleged complaints were made during
internal police department meetings or to fellow SAPD staff,
and were private. His association claim also fails to the extent
he has even presented that claim for review by this ‘Court. The
First Amendment does not protect professional friendships nor
the night to associate with co-employees. Roberts v. United
States Jaycees, 468 U.S. 609, 620 (1984) (“the Constitution
undoubtedly imposes constraints on the State’s power to control
the selection of one’s spouse that would not apply to regulations
23
affecting the choice of one’s fellow employees”). Moreover,
Serna produced no evidence that he associated with other
employees to discuss any alleged illegal activity within the
department. Board of Dirs. of Rotary Int'l v. Rotary Club of
Duarte, 481 U.S. 537, 548 (1987) (explaining that First
Amendment preserves one’s right to associate with others
to pursue political and social ends).
The Pickering balancing test also weighs against Serna’s
claims. The SAPD’s interest in promoting its public services
outweighed any interest Officer Serna had in his speech.
As explained above, Serna spoke on a matter of private
concern wholly within the confines of his employment and
in his capacity as an employee. Close working relationships
are absolutely essential to the operation of the SAPD
generally and the DFU specifically, as is demonstrated by
the disruption caused by the breakdown in authority in the
DFU. Serna was transferred because he was identified as a
disruptive individual, encouraging insubordination in the
DFU by fellow officers. This activity had the ability to impair
discipline and harmony within the unit, and the evidence
demonstrates that this, in fact, occurred.
Serna also failed to demonstrate a causal connection
between his transfer and any constitutionally-protected
activity. Serna claims to have complained to his supervisors
beginning in 1993, though he was not transferred until 1996,
more than three years later. (RR 210) With respect to the
alleged July 1995 report, Serna acknowledged that he
suffered no retaliation, even as he perceived it, until 1996.
‘(RR 264-65) Serna admitted that he has no evidence that
any of his complaints ever made their way to Chief Philippus
or that anyone conspired to transfer him. (RR 296-97, 310-
13) No one testified that retaliation was the reason for Serna’s
transfer, and many who testified made clear that they knew
of no report by Serna of any illegal activity and that, in any
event, they never communicated to Chief Philippus that Serna
24
had made a report of any illegal activity. (RR 102, 388-89, 407,
483, 700, 893-903, 911, 930-31, 933, 1001, 1024, 1369-70,
1372-73)
The members of the committee testified that Chief Philippus
never targeted Serna, that the Committee never considered any
report Serna allegedly made of illegal activity, and that the
Committee recommended the transfers to alleviate the discord
in the DFU; the transfers were not intended as punishment, and
the recommendation to transfer Serna was not based upon any
reports of violations of law made by Serna. (RR 1445-46, 1450-
51, 1482, 1497-99, 1500, 1517-18, 1528, 1543-44, 1578, 1590-
1601) Deputy Chief Ortiz, who headed the Committee,
interviewed Captain Rudy Vernon. (RR 1625) During that
interview, Captain Vernon never told him about any reports of
violations of law made by Serna, and, in fact, Serna’s name
was never mentioned. (RR 1625-26) Ortiz also testified that
there were no discussions during the committee meetings,
including one with Chief Philippus, of Serna having made any
reports of violations of law, and there was no discussion that
Serna needed to be silenced or retaliated against. (RR 1632-33)
The transfer was recommended in the interest of the department
and was not intended as punishment. (RR 1633)
Additionally, numerous other officers, such as Officers
Lynn, Vela and Froelick and Detective Mares testified that they
made complaints similar to those Serna allegedly made but were
never transferred. (RR 407, 414-18, 450, 516-17, 548-49, 567,
680-82, 701) Officer O’Connor testified that Serna was no more
vocal about Griffin’s orders than other officers who were not
transferred out of the unit. (RR 134-35) Other officers testified
that either they had no idea why Serna was transferred or
affirmatively corroborated that the reason for Serna’s transfer
was his unprofessional conduct in encouraging disruptive
behavior in the unit — conduct not at all related to alleged
violations of citizens’ civil rights. (RR 1025-26, 1174-77, 1191,
1193-94, 1229, 1238, 1247-50, 1284-87)
25
Based on the foregoing, Chief Philippus established that
he acted in good faith as a matter of law and was entitled to
qualified immunity as to all claims against him. The doctrine
of qualified immunity provides that certain public officials
who perform discretionary governmental functions should
not be faced with civil rights litigation unless there is a
showing that the official’s conduct violated clearly
established constitutional rights of which a reasonable person
would have known. Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). Qualified immunity protects “all but the
plainly incompetent or those who knowingly violate the law.”
Malley v. Briggs, 475 U.S. 335, 341 (1986). In the present
case, there is no evidence to support a violation of any
constitutional right. Furthermore, there is no evidence to
support that any action taken by Chief Philippus violated
any constitutional right of Serna, nor that Chief Philippus
should have understood that the transfer of Serna would have
violated any constitutional right. Chief Philippus was and is
entitled to qualified immunity as to all claims against him
as a matter of law.
Finally, damages based on the abstract value of
constitutional rights are not a permissible element of
compensatory damages in section 1983 cases. Memphis
Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 310 (1986). The
basic purpose of section 1983 is to compensate persons for
actual injuries that are caused by deprivations of
constitutional rights. Jd. at 307. Because no compensatory
damages can be awarded for constitutional violations in the
absence of proof of actual injury, the abstract value of a
constitutional right may not form the basis for section 1983
damages. /d. at 308. The special issues submitted to the jury
asked only if Serna’s rights were violated and for an amount
of money to compensate him, without any reference to
retaliation or elements of damage or injury. (CR 780, 782,
785, 787) As such, they allowed for an improper award of
damages.
26
CONCLUSION
For the foregoing reasons, this Court should deny the
petition for writ of certiorari.
Respectfully submitted,
JACQUELINE M. STROH
Counsel of Record
Crorts & CALLAWAY
A PROFESSIONAL CORPORATION
112 East Pecan Street
Suite 800
San Antonio, TX 78205-1517
(210) 299-0289
DEBORAH LYNNE KLEIN
OrFice OF THE City ATTORNEY
ASSISTANT City ATTORNEY III
P.O. Box 83996
San Antonio, TX 78283-3966
(210) 207-8950
MARK KOSANOVICH
FITZPATRICK & KOSANOVICH, P.C.
P.O. Box 831121
San Antonio, Texas 78283
(210) 207-7259
Attorneys for Respondents
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