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Valadez v. City of Corpus Christi

United States District Court, S.D. Texas, Corpus Christi Division

February 21, 2017




         Plaintiff, Dionicio Valadez (Valadez) sued Defendant City of Corpus Christi (the City) under 42 U.S.C. § 1983, alleging retaliation for the exercise of his First Amendment right to freedom of speech in connection with his suspension without pay after he complained of workplace safety violations. D.E. 11. Before the Court is the City's motion for summary judgment (D.E. 26), asserting three grounds for dismissal: (1) Plaintiff's speech was not protected by the First Amendment because it was uttered in connection with his responsibilities as employee rather than as a citizen; (2) Plaintiff's speech was not protected by the First Amendment because it did not involve a matter of public concern; and (3) Plaintiff has not demonstrated liability against the City pursuant to Monell[1] because there is no evidence of a final policymaker or a widespread policy to infringe on employees' freedom of speech.

         Valadez has responded (D.E. 29), objecting to the City's affidavit evidence, contending that the Civil Service Review Board is a final policymaker that failed to protect employees' freedom of speech as a matter of City policy, and arguing that his speech was protected as uttered for the benefit of the community at large and not just for workplace safety. The City filed a reply containing additional evidence (D.E. 31), which the Court disregards. For the reasons set out below, the Court SUSTAINS Valadez's objections to the City's evidence and GRANTS the motion to dismiss.


         Summary judgment is proper if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). A genuine issue exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must examine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52.

         In making this determination, the court must consider the record as a whole by reviewing all pleadings, depositions, affidavits, and admissions on file, and drawing all justifiable inferences in favor of the party opposing the motion. Caboni v. Gen. Motors Corp., 278 F.3d 448, 451 (5th Cir. 2002). In this respect, uncontroverted factual allegations in a non-movant plaintiff's pleading may be taken as true. Am. Mfrs. v. Colbert, 48 F.3d 530 (5th Cir. 1995).

         The court may not weigh the evidence, or evaluate the credibility of witnesses. Id. Furthermore, “affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e); see also Cormier v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (per curiam) (refusing to consider affidavits that relied on hearsay statements); Martin v. John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (per curiam) (stating that courts cannot consider hearsay evidence in affidavits and depositions).

         The moving party bears the initial burden of showing the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party demonstrates an absence of evidence supporting the nonmoving party's case, then the burden shifts to the nonmoving party to come forward with specific facts showing that a genuine issue for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To sustain this burden, the nonmoving party cannot rest on the mere allegations of the pleadings. Fed.R.Civ.P. 56(e); Anderson, 477 U.S. at 248. “After the nonmovant has been given an opportunity to raise a genuine factual issue, if no reasonable juror could find for the nonmovant, summary judgment will be granted.” Caboni, 278 F.3d at 451.


         A. Objections to the City's Evidence

         Sherri Eldridge, Human Resources Analyst for the City, submitted her affidavit (D.E. 26-1), attesting to the job description of a Senior Equipment Mechanic in the General Services Department-the position Valadez has held at all times material to this case. Valadez has not objected to the job description as attached to Eldridge's affidavit and it is admissible under the hearsay exception for business records. Fed.R.Evid. 803(6). In fact, rather than object to it, Valadez asks that it speak for itself.

         However, Eldridge further states that the terms of the job description mean that Valadez was responsible for ensuring the safe operation of equipment in connection with workplace safety, including making reports of observations to his supervisors. Valadez objects to Eldridge's interpretive testimony on the basis that it is mere allegation, is conclusory, states legal conclusions, is speculative, constitutes hearsay, and is a matter about which Eldridge is not competent to testify.

         The Court observes that the job description includes the requirement that one in Valadez's position “Ensure proper care in the use and maintenance of equipment and supplies. Promote continuous improvement of workplace safety and environmental practices.” D.E. 26-1, p. 5. Finding that the job description speaks for itself and the interpretive testimony is superfluous, the Court SUSTAINS Valadez's objections and STRIKES Eldridge's testimony in her affidavit that purports to explain the meaning of the job description.

         As a separate matter, Eldridge includes in her affidavit an investigation report generated with respect to Valadez's hostile work environment claim. This investigation report is not necessary to the determination of the motion before the Court. It further contains matters that are hearsay and not admissible as a business record. Valadez's objections to the investigation report and any testimony regarding that report are SUSTAINED and paragraph 7 of ...

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