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Harmon v. Dallas County

United States District Court, N.D. Texas, Dallas Division

February 20, 2018

NORVIS HARMON, Plaintiff,
v.
DALLAS COUNTY, TEXAS and DERICK EVANS, Defendants.

          MEMORANDUM OPINION AND ORDER

          Sam A. Lindsay United States District Judge

         Before the court is Defendant Derick Evans's Motion for Summary Judgment (Doc. 57), filed April 26, 2017. After considering the motion, briefs, pleadings, and evidence, the court grants Defendant Derick Evans's Motion for Summary Judgment (Doc. 57) and dismisses with prejudice Plaintiff's claim against Derick Evans (“Evans”) in his individual capacity based on Plaintiff Norvis Harmon's (“Plaintiff” or “Harmon”) alleged right to petition or appeal the termination of his employment, whether premised on retaliation in violation of the First Amendment's Petition Clause, denial of equal protection, or violations of state and local law (“Petition Claim”).

         Because the court's ruling rests in part on its determination as to which claims by Plaintiff are before the court and remain after the court's March 31, 2017 memorandum opinion and order, the court addresses in detail the allegations in Plaintiff's pleadings regarding Plaintiff's Petition Claim and how this claim, which was originally pleaded as a constitutional claim involving the denial of equal protection, morphed and expanded over the course of this litigation into a constitutional claim for alleged violations of the First Amendment right to petition, and, most recently, into a claim encompassing alleged violations of Plaintiff's statutory grievance rights under Texas Government Code § 617.005 and Dallas County Code Chapter 86. For the reasons herein explained, the court determines that Plaintiff's Petition Claim, brought pursuant to 42 U.S.C. § 1983, is either not properly before the court because it was not included in Plaintiff's pleadings, was abandoned by Plaintiff, or fails as a matter of law, regardless of whether it is characterized as a claim based on the denial of equal protection, retaliation in violation of the First Amendment's Petition Clause, or violations of statutory grievance rights under Texas Government Code § 617.005 and Dallas County Code Chapter 86.

         I. Factual and Procedural Background

         Harmon brought this action against Defendants Dallas County, Texas (“Dallas County” or “the County”) and former Dallas County Constable Evans (collectively, “Defendants”) on June 3, 2013. Harmon was previously employed by Dallas County in Constable Office, Precinct 1, as a deputy constable. His employment was terminated on June 3, 2011. The termination of his employment is the subject of this lawsuit, as well as a prior state court action filed by Harmon and two other deputy constables against Dallas County on September 9, 2011, in the 44th Judicial District Court, Dallas County, Texas.

         In the state court action, Harmon and the other plaintiffs asserted claims for alleged violations of the Texas Whistleblower Act (“TWA”) and Texas Local Government Code § 617.004, and an equal protection claim for alleged violations of the Texas Constitution. On March 28, 2012, the Whistleblower claim, equal protection claim, and claim for alleged violations of Texas Government Code 617.005 brought by Harmon in the state court action were dismissed with prejudice. In this federal action, Harmon originally asserted two claims against Defendants, pursuant to 42 U.S.C. § 1983, for alleged constitutional violations based on the denial of equal protection to petition the government and retaliation in violation of his First Amendment right to free speech. In his Complaint, Harmon refers to these claims as his “Denial of Equal Protection” claim and “Free Speech Claim.” Pl.'s Compl. 4, 5.

         A. First Amendment “Free Speech Claim” Included in Plaintiff's Complaint

         In his Complaint, Plaintiff refers to his claim against Defendants under the First Amendment for alleged retaliation as his “Free Speech Claim.” Id. at 5. Regarding his Free Speech Claim, Harmon alleges in his Complaint that Defendants retaliated against him in terminating his employment in violation of his First Amendment right to speak out on matters of public concern. Specifically, Harmon contends that he was fired because he reported that Evans and the supervisors under Evans engaged in illegal conduct in requiring deputy constables, including him, to: (1) donate time and money to Evans's re-election campaign; (2) work unpaid for political allies and friends of Evans; and (3) tow citizens' vehicles after traffic stops. In addition, Plaintiff asserts that he reported Evans's illegal conduct in setting traffic citation quotas in violation of Texas Transportation Code § 720.002.

         B. Denial of Equal Protection Claim Based on Right to Petition Included in Plaintiff's Complaint

         In his Complaint, Plaintiff refers to his claim against Defendants for alleged violations of his “right to petition the government for redress of grievances” as his “Denial of Equal Protection” claim. Id. at 4. Regarding this claim, Harmon alleges in his Complaint that he sought to appeal the termination of his employment “through the Dallas County grievance system and by appealing to Defendant Evans[, ]his department head, but his requests to appeal were refused by Defendants.” Id. ¶ 23. Harmon alleges that Defendants refused to hear the appeal of his termination through the Dallas County grievance system because he was not employed as a Deputy Constable before August 19, 2003. Defendants do not dispute that Dallas County's formal grievance system applies only to deputy constables hired before August 19, 2003, and Harmon's appeal through Dallas County's formal grievance system was rejected because he was hired after August 19, 2003. Harmon contends that the right to petition the government is a fundamental right, and “the actions of Defendants [in] depriv[ing] [him] of the right to petition the government for redress of grievances, when such right is granted to other similarly situated employees [deputy constables hired before August 19, 2003], is a denial of [his] right to equal protection of law guaranteed by the U.S. Constitution.” Id. ¶ 26.

         C. Plaintiff's Rule 7(a) Reply

         On August 7, 2013, Dallas County filed its Answer to Plaintiff's Complaint, asserting, among other things, that Plaintiff's claims against it were barred by res judicata as a result of the state court action. On March 15, 2014, Evans filed his Answer, similarly alleging that Plaintiff's claims against him were barred by res judicata, even though he was not a party to the state court action. Evans's Answer also included the defense of qualified immunity. Evans alleges that Plaintiff's claims against him are barred by qualified immunity because he did not engage in any conduct that could be “characterized as objectively unreasonable and which all officials in his circumstances would condemn as violative of Constitutional rights.” Evans's Answer ¶ 5. On February 26, 2015, former United States Chief Judge Jorge A. Solis (“Judge Solis”) ordered Plaintiff to file a reply under Federal Rule of Civil Procedure 7(a) (“Rule 7(a) Reply”) regarding “Defendants' qualified immunity defense[]” by March 18, 2015, and set a deadline for dispositive motions on qualified immunity for April 17, 2015. Order 1 (Doc. 24). On March 18, 2015, Plaintiff filed his Rule 7(a) Reply (Doc. 25) as directed. In his Rule 7(a) Reply, Plaintiff alleges in pertinent part as follows:

1. . . . Defendant Evans was a Texas peace officer and an elected Constable for Dallas County, Texas when he terminated Harmon for speaking out on matters of public concern. In 2013, the law was clearly established that public employees could not be terminated from their employment for speaking out on matters of public concern. As such, Defendant Evans is not entitled to prevail on his defense of qualified immunity.
30. Harmon alleges Defendant Evans had knowledge that Harmon reported Evans' illegal conduct to investigators hired by the Dallas County Commissioners Court, for speaking to the special prosecutor and for speaking to other law enforcement personnel.
31. Norvis Harmon alleges his termination was a wrongful termination because Defendant Evans terminated Harmon in retaliation for Harmon's speaking to investigators hired by the Dallas County Commissioners Court, for speaking to the special prosecutor and for speaking to other law enforcement personnel about Evans' illegal conduct.
32. Harmon alleges Defendant Evans' illegal conduct, including his illegal lottery to support his re-election campaign that resulted in Evans' felony conviction, were matters of public concern.
33. In 2011, every reasonable elected Constable in the State of Texas would have understood that Defendant Evans' conduct was objectively unreasonable as the law was clearly established that public employees cannot be terminated for speaking out on matters of public concern; because the law was clearly established that corruption and illegal conduct by elected officials is a matter of public concern; and because such a termination would and did violate Norvis Harmon's Constitutional rights.
34. Defendant Evans claims that Norvis Harmon was terminated due to discrepancies related to a G.P.S. system in the vehicles Harmon used to perform duties serving civil process as a deputy constable, but this purported reason is merely a pretext for Evans' illegal termination of Harmon.
35. Other similarly situated employees were permitted to explain the circumstances of the G.P.S. discrepancies and they were not terminated.
36. Still other similarly situated employees [deputy constables hired before August 19, 2003] who were permitted to explain the circumstances of the G.P.S. discrepancies in the context of a grievance process allowed by the Dallas County Civil Service system were reinstated to employment after their termination.
37. After Norvis Harmon was fired, he appealed and filed a grievance over his wrongful termination.
38. Defendant Evans illegally refused to hear Harmon's grievance over his termination, although Dallas County has claimed that all employees of Dallas County have the right to appeal terminations to their department head.
39. Defendant Evans was Norvis Harmon's department head at the time of Harmon's wrongful termination.
40. Defendant Evans had a policy and/or a regular practice to not hear grievances of employees, including grievances by deputy constables.
41. As an elected Constable, Defendant Evans was a final policy-maker regarding the grievance policy and/or practice of his office.
42. Defendant Dallas County also refused to allow Norvis Harmon to grieve his termination because Harmon was first employed as a deputy constable for Dallas County after August 19, 2003.
43. Deputy constables hired before August 19, 2003, who were otherwise similarly situated to Norvis Harmon, were allowed to grieve their terminations.
44. The sole criteria established by Defendant Dallas County to classify whether employees were allowed a grievance right was the employees date of hire.
45. The right to petition the government for the redress of grievances is established by the First Amendment to the U.S. Constitution and it is a fundamental right.
46. The classification by Defendant Dallas County of deputy constables into those who were allowed grievance rights and those who were denied any grievance rights is an illegal classification that amounts to a denial of equal protection.
47. The classification by Defendant Dallas County was accomplished by action of the Dallas County Commissioners Court, which is the final policymaker for Dallas County regarding the granting of grievance rights under the Dallas County Civil Service system.
48. Similarly situated employees [deputy constables hired before August 19, 2003] who were allowed to present their grievance to the Dallas Civil Service Commission were reinstated to their employment after their termination by Defendant Evans.
49. Norvis Harmon has been damaged as a result of his wrongful termination; because of Defendant Evans' refusal to hear any appeal of Harmon's wrongful termination; and as a result of his denial of grievance rights in the Dallas County Civil Service system by Defendant Dallas County.
50. Defendant Evans is not entitled to any immunity, neither in his official capacity, nor in his personal capacity for his illegal conduct of wrongfully terminating Norvis Harmon in retaliation for Harmon's exercise of his First Amendment right to speak out on a matter of public concern.

Pl.'s Rule 7(a) Reply ¶¶ 1, 30-50. Norman further alleges that “the law was clearly established that public employees could not be terminated from their employment for speaking out on matters of public concern; and it was also clearly established in 2013 that corruption and illegal acts by public officials and elected officials was a matter of public concern.” Id. ¶ 3.

         D. Evans's Motion for Judgment and Plaintiff's Request to Amend his Pleadings

         On April 17, 2015, Evans moved, based on his defense of qualified immunity, for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) (“Motion for Judgment”) on Plaintiff's First Amendment “Free Speech Claim” claim. In his response to Evans's Motion for Judgment (Doc. 27), Plaintiff sought leave to supplement his Complaint and Rule 7(a) Reply and attached as an exhibit to his response his proposed Supplement to Original Complaint and Rule 7(a) Reply, which supplements the allegations with respect to his Free Speech Claim. Evans's reply in support of his Motion for Judgment does not address Plaintiff's request to supplement his pleadings. On December 1, 2015, Judge Solis entered an order denying Evans's Motion for Judgment. Judge Solis's order does not expressly rule on or address Plaintiff's request for leave, but the order states that the court's ruling is based on the facts in Harmon's Complaint and Rule 7(a) Reply. Order 1 n.1 (Doc. 29). The order contains several citations and references to the factual allegations in “Doc. 25, ” which is Plaintiff's Rule 7(a) Reply, as well as “Doc. 27.” As noted, “Doc. 27” is actually Plaintiff's response to the Motion for Judgment, not the proposed supplement that is attached to Plaintiff's response, but it is apparent from Judge Solis's order that his citations to “Doc. 27” refer to Plaintiff's proposed supplement (Doc. 27-1). This is the only time Plaintiff requested to amend his pleadings.

         E. Partial Motions for Summary Judgment

         The case was assigned to the undersigned on April 27, 2016, three days before Judge Solis retired. On July 17, 2016, although the deadline set by Judge Solis for filing dispositive motions had expired, the court granted the parties' request to file limited summary judgment motions because the parties represented that their motion would significantly narrow and streamline the issues to be tried, which was a gross overstatement as evidenced by the three lengthy opinions the court has had to write. In retrospect, the court should have never granted the parties leave, as it only opened a legal and procedural Pandora's box. In their Limited Motion for Summary Judgment (Doc. 39), Defendants contended that the two claims asserted by Plaintiff in this action based on denial of equal protection and First Amendment free speech/ retaliation were barred by res judicata. Plaintiff contended in his partial summary judgment (Doc. 42) that he was entitled to judgment on his equal protection claim against Dallas County because his right to petition the government for redress of grievances is a fundamental right, and Dallas County's ordinance that limits grievance rights to deputy constables hired after August 19, 2013, denied him his right to equal protection of the laws under the United States Constitution and also violated his First Amendment right to petition the government. In support of his equal protection claim, Plaintiff contended that his claim against the County was based on the County's and Evans's conduct in terminating his employment and denying or refusing to hear his petition appealing the termination of his employment. See Pl.'s Summ. J. Br. ¶¶ 2, 21, 25 (Doc. 43).

         In response to Plaintiff's summary judgment motion, Defendants asserted that Plaintiff's equal protection claim, whether based on the alleged right to petition the government or the allegedly discriminatory treatment of deputy constables, applied only to the County, not Evans, because the rule that precluded Harmon from appealing the termination of his employment was put in place by the County without input from Evans, and the denial of civil service protection to Harmon occurred because of the County rule and for no other reason. In addition to contending that Plaintiff's two claims were barred by res judicata, Defendants requested that the court treat their response to Plaintiff's summary judgment motion as a cross-motion for summary judgment in the County's favor on the equal protection claim, which the County contended could be decided as a matter of law. In his reply brief, Harmon never challenged Defendants' contention that he had only asserted two claims, one for denial of equal protection against the County based on his alleged right to petition or appeal the termination of his employment and one for retaliation in violation of his First Amendment right to free speech against both Defendants; nor did Harmon challenge Defendants' assertion that his equal protection claim was only against the County.

         F. Decision to Revisit the Denial of Evans's Motion for Judgment and Submission of Supplement Briefs

         On January 16, 2017, before ruling on the parties' motions for partial summary judgment, the court gave the parties notice of its decision to sua sponte revisit Judge ...


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