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Spears v. McCraw

United States District Court, W.D. Texas, Austin Division

March 23, 2018

BILLY L. SPEARS, Plaintiff,
v.
STEVEN McCRAW, et al., Defendants.

          ORDER

          ROBERT PITMAN, UNITED STATES DISTRICT JUDGE.

         Before the Court is Defendants' Motion for Summary Judgment, (Dkt. 31). Having reviewed the filings, the relevant law, and the factual record, the Court issues the following order.

         I. BACKGROUND

         This action is a suit by Plaintiff Billy L. Spears (“Plaintiff” or “Spears”) against the Texas Department of Public Safety (“TDPS”), Steven McCraw, David Baker, Luis Gonzalez, Rhonda Fleming, Michael Bradberry, Luis Sanchez, K.B. Wilkie, Brandon Negri, Jimmy Jackson, and Marcus Stokke (collectively, “Defendants”).[1] Plaintiff originally filed suit in the 98th District Court of Travis County, Texas, but Defendants removed the action to federal court pursuant to 28 U.S.C. § 1331.

         Plaintiff is a trooper with the TDPS Highway Patrol Division. (Original Pet., Dkt. 1-3, ¶ 2). On May 10, 2014, Plaintiff and Trooper Manuel Ponce attended a concert at Lake Fork, Texas in plain clothes and while off-duty. (Id. ¶ 14). Both men attempted to carry alcoholic drinks from one area of the concert to another, but were stopped by a security guard. (Id.). According to Plaintiff, Defendant Stokke then approached the men and informed them that they could be arrested for a Class A misdemeanor if they carried the alcohol beyond a certain point. (Id.). After some discussion, Defendant Stokke allegedly advised Plaintiff that his behavior could lead to an arrest for public intoxication. (Id.). Plaintiff and Trooper Ponce then identified themselves as fellow law enforcement officers. (Id.). Defendant Stokke detained Plaintiff and summoned other law enforcement officers. (Id.). Plaintiff was eventually released. (Id.).

         Plaintiff subsequently filed a complaint with the Texas Alcoholic Beverage Commission, Defendant Stokke's employer, and reported the matter to the Texas Rangers and his superiors at TDPS. (Id. ¶ 15). He alleges that these actions led his superiors to retaliate against him in the form of a disciplinary complaint. (Id.). He was eventually suspended for one day without pay, but appealed that decision to TDPS Director Defendant McCraw. (Id. ¶ 20; Mot. Summ. J., Dkt. 31, at 5). Defendant McCraw concluded that the allegations against Plaintiff should not have been sustained, but ordered that Plaintiff receive “performance counseling.” (Original Pet., Dkt. 1-3, ¶ 15). Shortly thereafter, Plaintiff received a “Counseling Record” stating that his actions at the concert were “unprofessional” and “reflected poorly on the Department.” (Id.). Plaintiff signed the document, but wrote on it: “I don't agree with this.” (Id.).

         Several weeks later, Plaintiff worked an off-duty job as backstage security at a concert in Austin. (Id. ¶ 21). While Plaintiff was working backstage, he took a photograph with musician Calvin Broaddus. Broaddus performs under the stage name Snoop Dogg, and the photograph was later posted to Instagram with the caption “Me n my deputy dogg.” (Id.). Plaintiff was subsequently served with another “Counseling Record, ” which stated: “While working a secondary employment job, Trooper Spears took a photo with a public figure who has a well-known criminal background including numerous drug charges. The public figure posted the photo on social media and it reflects poorly on the Agency.” (Id. ¶¶ 22-24).

         Several days later, Plaintiff's attorney sent a letter to Defendant McCraw “asking him to remove the ‘Counseling Record' forms from [Plaintiff's] file and put a stop to the retaliation against [Plaintiff].” (Id. ¶ 25). The attorney then posted the letter on his blog, prompting local, national, and international media coverage. (Id.). TDPS issued a press release in response. (Id. ¶ 26).

         Plaintiff, who was subsequently promoted to Senior Trooper, now seeks relief pursuant to 42 U.S.C. § 1983 (“Section 1983”). He alleges that Defendants Jackson, Negri, Wilkie, Sanchez, Bradberry, Fleming, Gonzalez, Baker, and McCraw “retaliated against him for exercising his right to petition for redress of grievances as guaranteed by the First Amendment to the U.S. Constitution, ” denied him the equal protection of the laws as guaranteed by the Fourteenth Amendment to the U.S. Constitution, and “denied him due process of law as guaranteed by the Fourteenth Amendment to the U.S. Constitution.” (Original Pet., Dkt. 1-3, ¶¶ 28-30). Plaintiff also alleges that Defendant Stokke “violat[ed] his right to be free from unreasonable seizure as guaranteed by the Fourth Amendment to the U.S. Constitution, ” (id. ¶ 31), and asserts a supplemental claim under the Texas Whistleblower Act, (id. ¶ 33).

         Defendants filed the instant Motion for Summary Judgment on May 30, 2017. (Mot. Summ. J., Dkt. 31). They assert that Plaintiff (1) fails to overcome the individual defendants' entitlement to qualified immunity; and (2) fails to state cognizable claims under Section 1983 and the Texas Whistleblower Act. (Id. at 2).

         II. STANDARD OF REVIEW

         Summary judgment is appropriate under Rule 56 of the Federal Rules of Civil Procedure only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is “genuine” only 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, 254 (1986). “A fact issue is ‘material' if its resolution could affect the outcome of the action.” Poole v. City of Shreveport, 691 F.3d 624, 627 (5th Cir. 2012).

         The party moving for summary judgment bears the initial burden of “informing the district court of the basis for its motion, and identifying those portions of [the record] which it believes demonstrates the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “[T]he moving party may [also] meet its burden by simply pointing to an absence of evidence to support the nonmoving party's case.” Boudreaux v. Swift Transp. Co., 402 F.3d 536, 544 (5th Cir. 2005). The burden then shifts to the nonmoving party to establish the existence of a genuine issue for trial. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-87 (1986); Wise v. E.I. Dupont de Nemours & Co., 58 F.3d 193, 195 (5th Cir. 1995). “After the non-movant has been given the opportunity to raise a genuine factual issue, if no reasonable juror could find for the non-movant, summary judgment will be granted.” Miss. River Basin Alliance v. Westphal, 230 F.3d 170, 174 (5th Cir. 2000).

         The parties may satisfy their respective burdens by tendering depositions, affidavits, and other competent evidence. Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir. 1992). The Court will view this evidence in the light most favorable to the non-movant, Rosado v. Deters, 5 F.3d 119, 122 (5th Cir. 1993), and should “not make credibility determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).

         III. FIRST AMENDMENT: RETALIATION

         Plaintiff first alleges that Defendants Jackson, Negri, Wilkie, Sanchez, Bradberry, Fleming, Gonzalez, Baker, and McCraw “retaliated against him for exercising his right to petition for redress of grievances as guaranteed by the First Amendment to the U.S. Constitution.” (Original Pet., Dkt. 1-3, ¶ 28). Defendants maintain that, because Plaintiff has not demonstrated the occurrence of an adverse employment action, this claim must be dismissed.

         A. Legal Standards

         To establish a Section 1983 claim for employment retaliation related to speech, “a plaintiff- employee must show: (1) he suffered an adverse employment action; (2) he spoke as a citizen on a matter of public concern; (3) his interest in the speech outweighs the government's interest in the efficient provision of public services; and (4) the speech precipitated the adverse employment action.” Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 420-21 (5th Cir. 2017) (citing Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016)).

         Because Defendants' argument that Plaintiff has not stated a claim for retaliation is limited to their argument that he has not demonstrated the occurrence of an adverse employment action, the Court ...


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