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Mote v. Walthall

United States District Court, E.D. Texas, Sherman Division

June 20, 2017




         Pending before the Court is Defendant's Motion for Summary Judgment (Dkt. #55). Having considered the pleadings, the Court finds the motion should be granted in part and denied in part. Defendant's motion for summary judgment is granted as to Plaintiffs equal protection claim and Texas Government Code § 614.021 claim. Defendant's motion for summary judgment is denied as to all other claims.


         Plaintiff Marcus Mote worked as a police officer for the City of Corinth, Texas (the "City") from December 14, 2009, to October 20, 2015. Plaintiff was a member of the Texas Municipal Police Association, a labor association of law enforcement personnel. Plaintiff alleges Defendant Debra Walthall, the Chief of Police, terminated him for his involvement with the Corinth Police Officers' Association ("CPOA"), a local chapter of the Texas Municipal Police Association. Plaintiff brings claims against Defendant for alleged violations of the First and Fourteenth Amendments under 42 U.S.C § 1983 ("Section 1983") and alleged violations of the Texas Labor Code§ 101.301.[1]

         During his time as a police officer, Plaintiff was the subject of twelve disciplinary matters, including his termination (Dkt. #55, Exhibit 5). Nine of these disciplinary matters occurred from September 2010 to July 2014, before Plaintiff formed CPOA. Three disciplinary matters occurred after Plaintiff formed CPOA. In January 2015, Plaintiff and Corporal Jason Foutch (“Foutch”) informed Defendant of their intent to form CPOA. Defendant expressed her support for the association. Plaintiff alleges that between January 28, 2015 and January 30, 2015, Lieutenant Frank McElligott (“McElligott”), Internal Affairs Lieutenant Jimmie Gregg (“Gregg”), and Sergeants Clint Ventrca (“Ventrca”), Kevin Tyson (“Tyson”), and Joe Wheat (“Wheat”) expressed negativity regarding CPOA. Plaintiff alleges these individuals attempted to persuade Plaintiff not to form CPOA. Plaintiff alleges that on January 30, 2015, Tyson “verbally yelled at [Plaintiff] for 45 minutes regarding [Plaintiff's] involvement with the association.” Plaintiff states Gregg and Wheat participated in the conversation and voiced their negativity about the association.

         On February 4, 2015, Plaintiff and Defendant met again regarding CPOA. Plaintiff alleges that Defendant reluctantly stated she would support CPOA as long as the association maintained a positive message. Plaintiff alleges that Defendant told him that “things [would] get ugly” if the association turned negative (Dkt. #63 at p. 5). Plaintiff alleges Defendant agreed to issue a statement clarifying her support for the association, but did not do so (Dkt. #63 at p. 5). On February 11, 2015, Plaintiff led a meeting to organize CPOA. Plaintiff, Foutch, McElligott, Ventrca, Wheat, Corporal Ryan Brock, and Officers Jessie Gonzalez (“Gonzalez”), Michael Fraga, Carson Crow, and Lee Thompson attended the meeting.

         On February 13, 2015, Defendant emailed Assistant Chief Greg Wilkerson (“Wilkerson”), Lieutenant Carrie West (“West”), and Gregg an article regarding a Texas Municipal Police Association in Edinburg, Texas. The article discussed a Texas Municipal Police Association management survey that was critical of the Edinburg police department administration. Defendant's email stated, “[c]heck the article on Edinburg PD. This is exactly what TMPA will lead our guys to. This is the same survey that they did years ago on Allen PD.” (Dkt. #1 at p. 2). Plaintiff alleges that Defendant worked for the Allen Police Department when the Allen City Council received a similar Texas Municipal Police Association management survey critical of police administration.

         Plaintiff alleges that shortly after the initial CPOA meeting, he was cited for a number of disciplinary issues. On March 4, 2015, Plaintiff received a “performance file issue regarding the cleanliness of his assigned patrol unit.” (Dkt. #1 at p. 3); (Dkt. #55, Exhibit 5). On March 14, 2015, Tyson inspected Plaintiff's patrol car (Dkt. #63 at p. 8). On March 18, 2015, West reprimanded Plaintiff for not conducting a full inspection of his patrol car and documenting it on the patrol sheet (Dkt. #63 at p. 8). On April 8, 2015, West and Tyson issued Plaintiff a performance file issue stating that he failed to notify communications that he was working an off-duty assignment (Dkt. #63 at p. 10; Dkt. 55, Exhibit 5). Plaintiff states that at the time he did not have a patrol car assigned to him and forgot to check on duty with his police radio (Dkt. #63 at p. 10).

         During his time as an officer, Plaintiff served as a School Resource Officer for Lake Dallas High School (“LDHS”). On May 7, 2015, the assistant principal of LDHS asked Plaintiff to conduct screening of prom guests who were not LDHS students. Plaintiff states that the assistant principal and Officer Shane Rodgers (“Rodgers”), the previous School Resource Officer at LDHS, told Plaintiff to review the driver's license records of the guests. Plaintiff used the Texas Law Enforcement Telecommunication System (“TLETS”) database to review the driver's licenses of approximately forty guests. Plaintiff did not obtain permission from a supervisor to use the TLETS database to review the driver's license records.

         Plaintiff then informed the assistant principal that one of the guests had an arrest record and recommended that the assistant principal inform the principal of the arrest. The principal chose not to allow the individual to attend the prom, and the student's parent and the guest's parent complained to the principal. On May 8, 2015, Plaintiff told Gregg about the situation and the parents' complaint. Plaintiff states that although Gregg initially told Plaintiff this was not a problem, Gregg later called Plaintiff and told him he was not sure whether Plaintiff should run driver's licenses for this purpose (Dkt. #63 at p. 11). On May 11, 2015, West met with the principal regarding the situation. West told Plaintiff to leave the school and return to the police department. Upon arrival at the police department, Defendant told Plaintiff that he wrongfully used the TLETS database for non-law enforcement purposes and would be permanently removed as a School Resource Officer. That same day, McElligott issued an administrative warning to both Plaintiff and Rodgers.

         On May 14, 2015, McElligott received authorization from Defendant to initiate an internal affairs investigation into the allegations of misconduct by Plaintiff and Rodgers. On June 10, 2015, Plaintiff receive a letter of complaint regarding the allegations of misconduct. On July 2, 2015, McElligott sent Defendant a “Conclusion of Investigation” memo (Dkt. #55, Exhibit 6).

         The memo states that “the allegations of violations of policies of the Corinth Police Department, the Texas Department of Public Safety, and TLETS Operating Manual” were found to be true (Dkt. #55, Exhibit 6). The memo states that the “Department of Public Safety holds information derived from the TLETS network, such as driver's license data and vehicle registration data, in the same regard as CJI (Criminal Justice Information) and requires agencies to afford it the same level of protection as required for CJI.” The TLETS Operating Manual likewise reminds users that “driver's license information obtained from these files are to be used for criminal justice and law enforcement purposes only.” The memo notes that Plaintiff had taken TLETS training twice and passed tests after completing the training. Plaintiff also acknowledged that the Texas Department of Public Safety views driver's license history the same way it views criminal history in terms of privacy and acknowledged the school could have received the information from a public domain. The memo also details Plaintiff's use of a department-issued laptop for non-work related purposes. Plaintiff received a written reprimand for the use of the TLETS database and use of the laptop. Rodgers was issued a written warning.

         On July 12, 2015, Plaintiff was involved in another incident leading to a second internal affairs investigation. While on patrol at 3:30 a.m., Plaintiff encountered two juveniles in front of a residence in Corinth, Texas. Plaintiff did not exit his patrol car to make contact with the juveniles, but asked from his patrol car what the juveniles were doing and whether they lived at the residence. The juveniles stated they lived at the residence, and walked towards the front door. Plaintiff observed a man open the front door, allow the juveniles to enter, and shut the front door. Plaintiff then drove away.

         Within a short time, the homeowner called 911 and stated the juveniles had been drinking and did not live at the location. The homeowner stated that he let the juveniles enter the house because they needed to use the restroom and said the police officer gave them permission to do so. The homeowner also stated that he and his wife work with an organization that assists at-risk youths, and believed the officer had brought the juveniles to their home for assistance. Both juveniles were intoxicated. One juvenile was vomiting, urinated on the homeowner's bathroom floor, and had difficultly standing up. The homeowner stated he did not know why Plaintiff drove away.

         Plaintiff returned to the residence after the homeowner called 911. Plaintiff's supervisor, Ventrca, and Gonzalez also responded to the 911-dispatch call. The officers removed the juveniles from the home and issued citations for consumption of alcohol by a minor. Plaintiff acknowledged that when he returned to the home and exited his vehicle, he could see one juvenile was “visibly intoxicated” and that he “could faintly smell alcohol” on the other's breath. One of the juveniles was transported via ambulance to Denton Regional Medical Center for signs and symptoms of alcohol intoxication.

         On July 30, 2015, Gregg received authorization from Defendant to initiate an internal affairs investigation into allegations of misconduct regarding the juveniles' incident. The August 2015 “Summary of Investigation” and “Conclusion of Investigation” memos state Plaintiff admitted his view of the juveniles was limited. Plaintiff admitted that if he had gotten out of his vehicle, he would have known the individuals were juveniles. Plaintiff did not identify the two juveniles, did not walk or escort the juveniles to the front door of the residence, and did not verify that the juveniles lived at the residence. Plaintiff also did not identify the male who opened the front door.

         During the investigation, Gonzalez stated that he would have verified if the juveniles lived at the residence, regardless of what they said. Gonzalez likewise stated that through his interactions with the juveniles he could determine they were intoxicated, and pointed out that one of the juveniles had slurred speech and difficulty standing. Ventrca likewise stated that if Plaintiff would have had direct contact with the juveniles, he would have had clear indication the juveniles were intoxicated. Ventrca stated that if Plaintiff had realized the juveniles were intoxicated and had left without acting, “there would have been a clear case of dereliction of duty.” Gregg's “Conclusion of Investigation” memo found that Plaintiff violated Corinth Police Department policy, including policies stating that an officer shall not engage in conduct which constitutes a neglect of duty and officers shall investigate incidents that come to their attention to the fullest extent within their assigned responsibilities. The memo also found that Plaintiff violated the “Corinth Police Department General Order 2600 Juvenile Field Inquiry.” This policy requires that “[u]pon observation of a juvenile who is in possible violation of the City of Corinth Curfew Ordinance . . . an officer should . . . request the juvenile's name, age, date of birth, and address . . . determine why the youth is out, where he/she has been and where he/she is going.”

         On September 10, 2015, West reviewed the internal affairs investigation and sent Defendant a memo recommending Plaintiff's termination (Dkt. #55, Exhibit 6). West's memo noted disciplinary measures issued against Plaintiff beginning in 2010. West also stated that “[d]isciplinary measures for similar infractions by other officers in the past for Failure to Fully Investigate, Neglect of Duty and/or Unprofessional Behavior have ranged from a Demotion (2011 and 2014) to Termination (2011).” On September 23, 2015, McElligott also reviewed the internal affairs investigation and sent Defendant a memo recommending Plaintiff's termination (Dkt. #55, Exhibit 6). McElligott similarly noted Plaintiff's past disciplinary history and disciplinary measures taken for similar infractions by other officers.

         On October 5, 2015, Defendant sent Plaintiff a “Notice of Pre-Disciplinary Hearing” stating that the findings of the internal affairs investigation led to a recommendation of Plaintiff's termination (Dkt. #55, Exhibit 6). The notice states that Plaintiff would be permitted to present reasons why he should not be terminated at a hearing on October 8, 2015. Plaintiff did not waive the right to the pre-disciplinary hearing and elected to proceed with the formal disciplinary hearing process (Dkt. #55, Exhibit 6). On October 20, 2015, Defendant terminated Plaintiff. Plaintiff appealed his termination to the Acting City Manager in an evidentiary hearing held on December 23, 2015. The Acting City Manager upheld Plaintiff's termination on December 23, 2015. Defendant's retained expert, Craig Miller (“Miller”), the Chief of Police for the Dallas Independent School District Police Department, reviewed the internal affairs investigations and opined that Plaintiff acted inappropriately in his handling of the juveniles' incident (Dkt. #55, Exhibit 33). Miller's expert report states that, in his opinion, Defendant's actions “were objectively reasonable and a reasonable police chief would have made the same decision” regarding the termination (Dkt. #55, Exhibit 33).

         Plaintiff alleges that other officers involved with CPOA also faced retaliatory demotions. On March 24, 2015, Gonzalez, one of the individuals who attended the initial CPOA meeting, was reassigned from bailiff to patrol officer. On March 30, 2015, Foutch was removed as Senior Criminal Investigator and reassigned to “deep night” patrol shift (Dkt. #55, Exhibit 21). Plaintiff introduced evidence that other officers had the perception that “people that helped start [CPOA] got moved.” (Dkt. #63, Exhibit 6). See also Dkt. #63, Exhibit 5 (former Corinth Police Department officer stating that “there were a number of things that kept me from not wanting to get involved because I'm . . . appreciative to be in my position. And I noticed that there were a lot of changes going on and I didn't want to change my job.”); Dkt. #63, Exhibit 7 (Corinth Police Department officer stating that his relationship with his sergeant changed after he joined CPOA and that the timing of Foutch, Gonzalez, and Plaintiff's transfers was suspicious).

         On February 22, 2016, Plaintiff filed his Original Complaint (Dkt. #1). On March 7, 2017, Defendant filed a motion for summary judgment (Dkt. #55). On April 4, 2017, Plaintiff filed a response (Dkt. #63). On April 11, 2017, Defendant filed objections to Plaintiff's summary judgment evidence and reply (Dkt. #66). On April 25, 2017, Plaintiff filed a response to defendant's objections (Dkt. #67).


         The purpose of summary judgment is to isolate and dispose of factually unsupported claims or defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits “[show] that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute about a material fact is genuine “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 trial court must resolve all reasonable doubts in favor of the party opposing the motion for summary judgment. Casey Enters., Inc. v. Am. Hardware Mut. Ins. Co., 655 F.2d 598, 602 (5th Cir. 1981) (citations omitted). The substantive law identifies which facts are material. Anderson, 477 U.S. at 248.

         The party moving for summary judgment has the burden to show that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Id. at 247. If the movant bears the burden of proof on a claim or defense on which it is moving for summary judgment, it must come forward with evidence that establishes “beyond peradventure all of the essential elements of the claim or defense.” Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986).

         Where the nonmovant bears the burden of proof, the movant may discharge its burden by showing that there is an absence of evidence to support the nonmovant's case. Celotex, 477 U.S. at 325; Byers v. Dall. Morning News, Inc., 209 F.3d 419, 424 (5th Cir. 2000). Once the movant has carried its burden, the nonmovant must “respond to the motion for summary judgment by setting forth particular facts indicating there is a genuine issue for trial.” Byers, 209 F.3d at 424 (citing Anderson, 477 U.S. at 248-49). The nonmovant must adduce affirmative evidence. Anderson, 477 U.S. at 257. No “mere denial of material facts nor . . . unsworn allegations [nor] arguments and assertions in briefs or legal memoranda” will suffice to carry this burden. Moayedi v. Compaq Comput. Corp., 98 F. App'x 335, 338 (5th Cir. 2004). Rather, the Court requires “significant probative evidence” from the nonmovant in order to dismiss a request for summary judgment supported appropriately by the movant. Unite ...

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