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Dorris v. City of Mckinney

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

July 12, 2017




         Pending Before the Court is Defendants Daniel Kistner's and Jose Madrigal's Motion for Reconsideration of Order Denying Motion to Dismiss (Dkt. #51). Having considered the pleadings, the Court finds the motion should be granted in part and denied in part.


         Plaintiff worked for the City of McKinney, Texas (the “City”) Fire Department from March 2003 to July 16, 2015. During his employment with the Fire Department, Plaintiff served as the elected president of the International Association of Fire Fighters, Local 2661 (“Local 2661” or the “Association”). Plaintiff alleges that the City terminated his employment after he organized a photo shoot for Local 2661's political action committee and its endorsed candidates for City Council.

         After the political action committee posted photographs from the photo shoot on its Facebook page, City Fire Chief Daniel Kistner (“Defendant Kistner”) asked the City Police Department to open an administrative inquiry to determine whether the post violated any City policy or rule. After an initial inquiry, Defendant Kistner commenced a full Internal Affairs investigation into Plaintiff. On July 16, 2015, at the conclusion of the Internal Affairs investigation, Defendant Kistner signed a Notice of Disciplinary Action (the “Notice”) terminating Plaintiff for violating the City's policy on insubordination. The Notice stated that Plaintiff failed to follow an order given by the City Manager's office not to use City equipment to endorse candidates and failed to use his chain of command for his request to use City-owned property. Deputy City Manager Jose Madrigal (“Defendant Madrigal”) approved Plaintiff's termination.

         On April 10, 2017, the Court issued an order denying Defendants Kistner's and Defendant Madrigal's motions to dismiss Plaintiff's First Amended Complaint (Dkt. #50). On April 20, 2017, Defendants filed the pending motion for reconsideration (Dkt. #51). On May 2, 2017, Plaintiff filed a response (Dkt. #52). On May 12, 2017, Defendants filed a reply (Dkt. #53).


         A motion seeking “reconsideration” may be construed under either Federal Rule of Civil Procedure 59(e) or 60(b). Shepherd v. Int'l Paper Co., 372 F.3d 326, 328 n. 1 (5th Cir. 2004); see also Milazzo v. Young, No. 6:11-cv-350-JKG, 2012 WL 1867099, at *1 (E.D. Tex. May 21, 2012). Such a motion “‘calls into question the correctness of a judgment.'” Templet v. HydroChem Inc., 367 F.3d 473, 478 (5th Cir. 2004) (quoting In re Transtexas Gas Corp., 303 F.3d 571, 581 (5th Cir. 2002)).

         “If a motion for reconsideration is filed within 28 days of the judgment or order of which the party complains, it is considered to be a Rule 59(e) motion; otherwise, it is treated as a Rule 60(b) motion.” Milazzo, 2012 WL 1867099, at *1; see Shepherd, 372 F.3d at 328 n. 1; Berge Helene Ltd. v. GE Oil & Gas, Inc., No. H-08-2931, 2011 WL 798204, at *2 (S.D. Tex. Mar. 1, 2011)). Defendants filed their motion for reconsideration within 28 days of order denying their motion to dismiss; therefore, the motion will be considered a Rule 59(e) motion.

         A Rule 59(e) motion is “not the proper vehicle for rehashing evidence, legal theories, or arguments that could have been offered or raised before the entry of judgment.” Templet, 367 F.3d at 479 (citing Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990)). “Rule 59(e) ‘serve[s] the narrow purpose of allowing a party to correct manifest errors of law or fact or to present newly discovered evidence.'” Id. (quoting Waltman v. Int'l Paper Co., 875 F.2d 468, 473 (5th Cir. 1989)). “Relief under Rule 59(e) is also appropriate when there has been an intervening change in the controlling law.” Milazzo, 2012 WL 1867099, at *1 (citing Schiller v. Physicians Res. Grp., 342 F.3d 563, 567 (5th Cir. 2003)). “Altering, amending, or reconsidering a judgment is an extraordinary remedy that courts should use sparingly.” Id. (citing Templet, 367 F.3d at 479).


         In their motion for reconsideration, Defendants argue that the Court committed an error of fact in finding that Defendants did not contest that Plaintiff's organization of the photo shoot motivated his termination (Dkt. #51 at p. 1). Defendants also argue the Court committed an error of law in conducting a “generalized approach to the analysis of qualified immunity.” (Dkt. #51 at p. 1).

         Motivation for Termination

         In order for a public employee to recover for a free speech retaliation claim, the plaintiff must satisfy four elements: (1) the plaintiff must suffer an adverse employment decision; (2) the plaintiff's speech must involve a matter of public concern; (3) the plaintiff's interest in commenting on matters of public concern must outweigh the defendant's interest in promoting efficiency; and (4) the ...

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