United States District Court, S.D. Texas, Corpus Christi Division
ORDER DISMISSING ACTION
GONZALES RAMOS UNITED STATES DISTRICT JUDGE
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 because there is
no evidence of a final policymaker or a widespread policy to
infringe on employees' freedom of speech.
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.
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.
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).
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).
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.
Objections to the City's Evidence
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.
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.
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
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 ...