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Norman v. City of Big Sandy

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

September 30, 2019




         Before the Court is City of Big Sandy’s First Amended Motion to Dismiss, or Alternatively, Motion for Judgment on the Pleadings (ECF 33). Plaintiff filed a response to the motion to dismiss (ECF 36) and Defendant filed a reply (ECF 41). Defendant then filed City of Big Sandy’s Motion for Summary Judgment (ECF 56), to which Plaintiff filed a response (ECF 60) and Defendant filed a reply (ECF 64). The case was transferred to the undersigned with the consent of the parties in accordance with 28 U.S.C. § 636. For the reasons below, the motions are GRANTED-in-part and DENIED-in-part.


         Plaintiff initiated this lawsuit in the 7th Judicial District Court, Smith County, Texas. The case was removed and filed in this court on June 5, 2018. Plaintiff states in the First Amended Complaint (ECF 21) that he was employed by the City of Big Sandy, Texas, as a police officer from November 2013 to February 15, 2018. Plaintiff asserts claims pursuant to the Texas Whistleblower Act, TEX. GOV’T CODE § 554.001 et seq. (“TWA”), and 42 U.S.C. § 1983.

         Plaintiff states that, on December 9, 2017, his supervisor was reviewing a case file concerning an arrest made by one of Plaintiff’s fellow officers. When reviewing the file, the supervisor allegedly concluded that the audio and video of the arrest did not support the officer’s affidavit, which stated that the arrestee gave him permission to search his vehicle. Plaintiff asserts that the supervisor asked him and another officer to independently review the audio and video. According to Plaintiff, both officers agreed with the supervisor that the audio and video of the arrest contradicted the arresting officer’s affidavit concerning whether permission was given for a search. Plaintiff submits that he informed Big Sandy Police Chief Scott on December 14, 2017, that an officer provided false information in his affidavit. He complains, however, that nothing was done by Chief Scott to address the issue or investigate the matter.

         As a result of Chief Scott’s alleged failure to act, Plaintiff states that he discussed the matter with his father, a city councilmember. Plaintiff’s father advised him to prepare and present a criminal investigation packet to Chief Scott. Plaintiff contends that Chief Scott continued to fail to address the matter after he presented the packet to him. Accordingly, Plaintiff discussed the matter again with his father. Plaintiff then presented the information that he gathered concerning his fellow officer’s allegedly falsified affidavit to the Big Sandy City Attorney and the Upshur County District Attorney’s Office. Plaintiff contends that Chief Scott, extremely upset with Plaintiff’s actions, began procedures to terminate his employment, as well as his supervisor’s employment and that of the officer who concurred with their opinion that the arresting officer falsified his affidavit.

         Plaintiff alleges that Chief Scott provided him with an Internal Complaint on January 26, 2018. Plaintiff states that the complaint alleges that he violated the values and policies of City of Big Sandy, including “[i]mmoral, unlawful, or improper conduct which would tend to affect the employee[‘]s relationship to his job, his fellow workers, his reputation, or good-will in the community.”[1] He then received an Amended Internal Complaint on February 8, 2018, “that had more details as the basis for investigations, which included false allegations and claims about violations of certain laws and policies/procedures.”[2] According to Plaintiff, Chief Scott was the final policymaker for the Big Sandy Police Department. Alternatively, the City Council was the final policymaker.

         Plaintiff alleges that Chief Scott presented him a Memorandum of Separation on February 15, 2018, alleging that Plaintiff violated department policies and terminating his employment. Plaintiff submits that the other officers involved in the matter also suffered adverse employment actions. Plaintiff appealed his termination to the Big Sandy City Council. At a meeting on April 17, 2018, the city council allegedly adopted new rules that limited the time for Plaintiff’s presentation concerning his appeal and prevented him from having witnesses testify on his behalf. Plaintiff complains that the attorney representing Big Sandy Police Department conducted ex parte meetings with councilmembers during executive sessions. The City Council ultimately upheld Plaintiff’s termination. Plaintiff asserts that his employment would not have been terminated but for his good faith reporting of potential illegal conduct by a fellow officer. As a result, Plaintiff submits that his termination is a violation of TWA. Similarly, he alleges that City of Big Sandy violated his First Amendment rights in violation of 42 U.S.C. § 1983.

         In response to the First Amended Complaint, Defendant filed its First Amended Motion to Dismiss, or Alternatively, Motion for Judgment on the Pleadings (ECF 33). Defendant’s motion asserts that Plaintiff’s First Amendment claim brought pursuant to § 1983 fails because the speech at issue was not protected, as it was speech made as an employee of the police department and not as a private citizen. Even if Plaintiff could show protected speech, Defendant asserted that Plaintiff did not establish the requirements for the City of Big Sandy to be liable. Defendant further argued that this Court lacks jurisdiction over Plaintiff’s state law TWA claim and, alternatively, Plaintiff failed to establish a TWA claim.

         Defendant then filed its motion for summary judgment asserting the same arguments for dismissal. The motion for summary judgment includes deposition excerpts and the traffic stop video that relates to the allegedly falsified police officer’s affidavit. Defendant asserts that the speech at issue is not protected under the First Amendment because Plaintiff was not speaking as a citizen. Instead, he was speaking in his role as a police officer concerning information learned through his official duties. Defendant additionally asserts that this Court lacks jurisdiction over Plaintiff’s TWA claim because the City’s immunity to suit in federal court has not been waived.

         The motion includes a “Statement of Material Facts.” Pursuant to Local Rule CV-56(a), a motion for summary judgment shall include a “Statement of Undisputed Material Facts.” The Court assumes that Defendant’s “Statement of Material Facts” is its statement of material facts that are not in dispute. Plaintiff’s response does not include a response to the “Statement of Material Facts, ” as required by Local Rule CV-56(b). Instead, Plaintiff’s response includes a “Factual Background.” The response does not identify which material facts asserted by Defendant are in dispute. Separately, Plaintiff filed Objections to Defendant City of Big Sandy’s Summary Judgment Evidence (ECF 61), objecting to certain facts asserted in the motion for summary judgment and the supporting evidence on the ground that they contain hearsay or are based on speculation.

         In his response, Plaintiff again asserts that he learned from his supervisor, Sgt. Kuhn, that a fellow police officer, Officer Gilow, submitted an affidavit that was factually inconsistent with a traffic stop video recording. Plaintiff states that he reviewed the video, read the affidavit and concluded that Officer Gilow conducted an illegal search and then lied about it in his affidavit.

         Plaintiff states that he informed Chief Scott, but no action was taken. As a result, Plaintiff contends that he spoke to his father, a city councilman, about the situation. Plaintiff submits that he spoke to his father when he was off duty and out of uniform. He asserts that they discussed putting together a criminal offense report that would be submitted to Chief Scott.

         Plaintiff states in his response: “On January 6, 2018, Norman put together his Offense Report for a Class A misdemeanor offense of perjury against Gilow, and included his statement, a copy of the traffic stop, a copy of Gilow’s probable cause affidavit and offense report, and supplemental reports from Sergeant Kuhn and Officer Pradia.” See Plaintiff’s Response to Defendant Big Sandy’s Motion for Summary Judgment and Brief in Support, ECF 60, at *5. Plaintiff asserts that the report was submitted to Sgt. Kuhn for review and approval and then was submitted to Chief Scott for a determination of what would happen next, “[a]s with any other criminal investigation.” Id.

         Plaintiff submits that he received a negative response from Chief Scott and again spoke to his father about the situation in his capacity as a concerned citizen. Plaintiff states that his father, Councilman Norman, received a copy of Officer Gilow’s case file, minus audio and video recordings, from Sgt. Kuhn after the conclusion of the “criminal investigation” and took it to the City Attorney’s office. Id. at 6. Plaintiff asserts that he received the Internal Complaint from Chief Scott concerning his conduct on the same day that the City Attorney contacted Chief Scott about the Officer Gilow packet. Plaintiff alleges that his employment was ultimately terminated because of his participation “in a criminal investigation and for speaking to members of city council about Gilow’s false statements and Chief Scott’s unethical behavior.” Id. at *10.

         Plaintiff argues in his brief that his communications with his father and other members of the city council were solely in his capacity as a private citizen and not as a police department employee. Plaintiff asserts that this position is supported by the fact that his father was the city councilman designated to receive complaints from citizens about the police department. He submits that the speech at issue was made as a private citizen and is protected. Plaintiff ...

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