Amanda Culbertson, et al v. Pat Lykos, et al

Filing

PUBLISHED OPINION FILED. [13-20569 Affirmed in Part, Reversed in Part, and Remanded 13-20751 Affirmed in Part, Reversed in Part, and Remanded ] Judge: TMR , Judge: JWE , Judge: LHS Mandate pull date is 07/13/2015 [13-20569, 13-20751]

Case: 13-20569

Document: 00513087139

Page: 1

Date Filed: 06/22/2015

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-20569
c/w No. 13-20751
AMANDA CULBERTSON; JORGE WONG,

United States Court of Appeals
Fifth Circuit

FILED
June 22, 2015
Lyle W. Cayce
Clerk

Plaintiffs - Appellants

v.

PAT LYKOS; RACHEL PALMER; HARRIS COUNTY,
Defendants - Appellees

Appeals from the United States District Court
for the Southern District of Texas
Before REAVLEY, ELROD, and SOUTHWICK, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
Former employees of the college that had contracted to oversee breath
alcohol testing for the Harris County Sheriff’s Office brought suit against the
County, the District Attorney, and one of her assistants, for causing their
termination by the college. The suit was brought under Section 1983 for
violations of the plaintiffs’ First Amendment rights. State law claims were also
brought. The district court dismissed all claims and awarded attorneys’ fees
to the defendants. We conclude that some of the claims should not have been
dismissed. We REVERSE in part, REVERSE the award of attorneys’ fees, and
REMAND for further proceedings.

Case: 13-20569

Document: 00513087139

Page: 2

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
FACTUAL AND PROCEDURAL BACKGROUND
This appeal is from a dismissal based on the pleadings. Our factual
discussion thus draws from the complaint. Plaintiffs Amanda Culbertson and
Jorge Wong are former employees of the Houston Police Department (“HPD”)
in Harris County, Texas. Culbertson began working for HPD in 2006 as a
criminal specialist in HPD’s crime lab. She received her certification as a
technical supervisor from the Texas Department of Public Safety.

She

eventually served as a technical supervisor of HPD’s breath alcohol testing
program. Wong began working as a criminalist in HPD’s crime lab in 2009.
He also received certification as a technical supervisor. The plaintiffs’ duties
included breath alcohol testing and maintaining the instruments used in
HPD’s Breath Alcohol Testing (“BAT”) vans.

Both Culbertson and Wong

believed that excessive temperatures and electrical problems with the
instruments in the BAT vans could affect the integrity of the test results. They
informed HPD officials of these concerns, but the problems were not resolved.
In March 2011, due in part to dissatisfaction with the BAT vans, Wong
resigned from HPD and began working for Lone Star College. Culbertson
resigned effective May 13, 2011, primarily due to her concerns about the BAT
vans. She started working for Lone Star the same month. Lone Star was under
contract to Harris County to provide technical supervisors to oversee the
Harris County Sheriff’s Office breath alcohol testing program. The yearly
services contract (the “Contract”) was to end in the fall but was renewable.
Harris County had contracted with Lone Star for nearly thirty years.
The Harris County District Attorney’s office subpoenaed Culbertson to
testify about a breath alcohol test at a trial set for the week of May 23, 2011.
When Culbertson arrived to testify on May 25, she told the assistant district
attorney she could testify to the monthly inspection records of the BAT vans
2

Case: 13-20569

Document: 00513087139

Page: 3

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
and to the fact that the instrument in question worked properly during the
inspection she conducted.

In Culbertson’s actual testimony, however, she

would not state that the instrument was working properly the day the
defendant took the test. The jury acquitted the defendant.
On June 3, then-Assistant District Attorney Rachel Palmer emailed one
of the technical supervisors at Lone Star. She wrote that the DA’s Office would
not use Culbertson in future Harris County Sheriff’s Office breath alcohol
testing cases. Palmer drafted a memorandum to the DA Office Bureau Chief
on July 11 discussing Culbertson’s testimony on May 25. The memorandum
stated that “[a]fter this debacle, we realized that she could not be trusted to
testify in any breath test.” Palmer also stated she was “gravely concerned
about [Culbertson’s] ability to testify fairly in cases going forward.”
On July 26, a meeting was held with representatives from Lone Star, the
Harris County Sheriff’s Office, and the Harris County Commissioners Court to
discuss the renewal of the Contract. The plaintiffs allege that an unwritten
agreement was reached to renew the previous year’s Contract.

The

Commissioners Court was to vote to approve the agreement in mid-September.
On July 27, Culbertson was subpoenaed by a defense attorney to testify
in a suppression hearing. During the hearing, the defense attorney asked
Culbertson about problems with the BAT vans. Culbertson testified that a “big
reason” why she and Wong left HPD was because they were not being
permitted to maintain the reliability of the equipment in the vans. Palmer,
the assistant district attorney on the case, cross-examined Culbertson. During
the cross-examination, the plaintiffs allege that Palmer acknowledged
Culbertson was a “whistleblower.”
Shortly after Culbertson’s testimony, Palmer and the DA’s Office began
investigating Culbertson for

perjury. Culbertson
3

hired an

attorney.

Case: 13-20569

Document: 00513087139

Page: 4

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
Culbertson claims that at this time she was told by someone that her technical
supervisor certification was in jeopardy. She also contends that Palmer was
telling prosecutors in the DA’s Office that Culbertson was not credible.
In August, Culbertson met twice with individuals from the DA’s Office
to discuss concerns raised by her testimony and to explain what she had
discussed with the manufacturer of the instruments used in the BAT vans.
Palmer was at the second of these meetings. After the meetings, the DA’s
Office notified attorneys for two criminal defendants of potentially exculpatory
or mitigating evidence based on Culbertson’s concerns.
Around September 1, 2011, the plaintiffs allege that Palmer met with
representatives from both the Harris County Sheriff’s Office and the Harris
County Commissioners Court. At this meeting, Palmer and the DA’s Office
recommended that Harris County contract with the Texas Department of
Public Safety (“DPS”) for breath alcohol testing rather than with Lone Star.
Culbertson asserts that then-District Attorney Pat Lykos, 1 Assistant District
Attorney Palmer, and the DA’s Office sought to discredit Culbertson and Wong
so that the Contract would be awarded to DPS instead of Lone Star. These
efforts included other private conversations with representatives of the
Commissioners Court.
At a September 13 meeting of the Commissioners Court, several defense
attorneys expressed their opinion that the Contract between Lone Star and
Harris County was ending due to Culbertson and Wong’s actions as
whistleblowers.

During this meeting, one County Commissioner stated

publicly that he supported terminating the Contract with Lone Star because

The plaintiffs settled with Lykos in her individual capacity, and thus the only
individual-capacity allegations that are relevant to this appeal are those that relate to
Palmer. We discuss Lykos solely in order to give context for some of the allegations.
1

4

Case: 13-20569

Document: 00513087139

Page: 5

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
the County should not work with someone who takes an adversarial position
to the DA’s Office. Palmer was present at the meeting.
On September 17, the Houston Chronicle newspaper published an article
regarding HPD’s knowledge of problems with the BAT van program. The
article quoted Culbertson and Wong regarding their concerns about the vans.
At the end of September, DPS employees removed breath alcohol testing
instruments from Lone Star’s facilities. At about the same time, DPS sent out
proficiency samples to technical supervisors. The samples are used to test a
technical supervisor’s ability to prepare a prescribed solution. The proficiency
samples had to be completed annually to maintain technical supervisor
certification. DPS did not send samples to Culbertson or Wong.
On October 1, the Houston Chronicle published statements by
Culbertson regarding her belief that the DA’s Office had retaliated against her,
including: “I think they had to make a choice between fixing the problem and
silencing me, and it was easier to silence me or anyone else who spoke out.”
On October 4, the Harris County Commissioners Court formally
approved the budget for Harris County. The budget included a contract with
DPS for breath alcohol testing, thus ending the Contract with Lone Star. A
spokesman for the Harris County Sheriff’s Office stated publicly that his office
understood that the DA’s Office objected to the procedures or testimony
provided by the Lone Star experts. As a result of the loss of the Contract, Lone
Star terminated Culbertson and Wong on October 31, 2011.
The plaintiffs filed this lawsuit in December 2012.

They claimed a

violation of their free speech rights under the First Amendment and sought
relief under 42 U.S.C. § 1983.

They also brought state law claims.

The

defendants filed motions to dismiss under Federal Rule of Civil Procedure
12(b)(6).

Palmer also filed to dismiss pursuant to the Texas Citizens
5

Case: 13-20569

Document: 00513087139

Page: 6

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
Participation Act (“TCPA”). In August 2013, the district court entered a final
order granting those motions.

Palmer then filed for attorneys’ fees and

sanctions, which were awarded in November 2013. The plaintiffs separately
appealed from both rulings. We have consolidated the appeals. The plaintiffs
settled with Lykos in her individual capacity, and she has been dismissed.
DISCUSSION
We review a district court’s grant of a motion to dismiss under Rule
12(b)(6) de novo. Reece v. U.S. Bank Nat’l Ass’n, 762 F.3d 422, 424 (5th Cir.
2014) (citation omitted). A complaint must contain “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,
550 U.S. at 556).

“The plausibility standard is not akin to a ‘probability

requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
The plaintiffs arrange their brief in the principal appeal around three
large issues with multiple subparts. They also raise separate issues regarding
the award of attorneys’ fees, which is the subject of the later, now consolidated,
appeal. We have largely placed our analysis within the plaintiffs’ structure,
with some reorganization and rephrasing as follows:
I. The First Amendment retaliation claims
A. Public employee and ordinary citizen First Amendment rights
B. Applying First Amendment law to the allegations in the complaint
6

Case: 13-20569

Document: 00513087139

Page: 7

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
C. Palmer’s prosecutorial or qualified immunity
D. Pleading of municipal liability
II. Tortious interference claims
III. The Texas Citizen Participation Act (“TCPA”)
IV. Procedural issues
A. Motion for leave to amend
B. Consideration of matters outside the pleadings
I. First Amendment Retaliation
Most, but not all, of the statements that are alleged to have caused the
retaliation were made by the plaintiffs after they were no longer employed by
HPD. Liability under Section 1983 for retaliation by the government against
private citizens for their statements, and liability for retaliation by
governmental employers against public employees for their statements, are
subject to different analyses. Thus, we must identify the category into which
these claims should be placed.
A. Public employee and ordinary citizen First Amendment rights
The general framework for a First Amendment retaliation claim
involving a public employee was articulated by our en banc court this way:
(1) the plaintiff suffered an adverse employment decision, (2) the
plaintiff's speech involved a matter of public concern, (3) the
plaintiff's interest in speaking outweighed the governmental
defendant's interest in promoting efficiency, and (4) the protected
speech motivated the defendant's conduct.
Kinney v. Weaver, 367 F.3d 337, 356 (5th Cir. 2004) (en banc) (citation omitted).
Our Kinney en banc opinion has central importance in our review of the district
court’s decision here. We were split 9-6 on issues similar to those raised here,
7

Case: 13-20569

Document: 00513087139

Page: 8

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
suggesting the legal questions were not easily answered. Close questions they
may be, but the answers given to them by the Kinney majority bind us now.
Dean Kinney and David Hall were instructors at a police academy
operated by Kilgore College in Texas. Id. at 340-41. Basic and advanced
training for police was offered. Id. at 341. The lawsuit had its genesis when
Kinney and Hall testified as experts on behalf of the victim’s family that police
had acted improperly in the fatal shooting of a teenager. Id. at 340-41. Several
police chiefs notified Kilgore that they objected to instructors testifying against
police; some police chiefs indicated they would boycott any Kilgore program in
which one of the instructors was either Kinney or Hall, while others refused to
attend classes either of them taught. Id. at 342-43. At a quarterly meeting of
the police association to which these police chiefs belonged, it was agreed those
police departments would not send any officers to classes taught by the
plaintiffs. Id. at 344. Hall resigned to take another job; Kinney stayed for one
more contract year, but then his contract was not renewed. Id. at 345. Kinney
and Hall sued the police chiefs and others, claiming their First Amendment
rights were violated. Id. at 345-46. As we will discuss in more detail later, we
applied the analysis for retaliation against public employees and held the
police chief’s motion for summary judgment was properly denied. Id. at 374.
Similar to an argument made in this case, a dissent found it “absurd to
hold that the police chiefs and sheriffs are not vested with discretion in
choosing which teachers to use (and pay) for [their] training . . . .” Id. at 375
(Barksdale, J., dissenting) (emphasis in original). The defendants here argue
that the present case is about their discretion to decide whom should be
selected (and paid) as witnesses for prosecutions. There is plausibility to such
concerns, but the Kinney majority rejected them.

8

Case: 13-20569

Document: 00513087139

Page: 9

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
An important caveat to the framework applied in Kinney is that there is
no First Amendment protection for the speech at all when public employees
make statements as part of their official duties. Garcetti v. Ceballos, 547 U.S.
410, 421 (2006). The First Amendment, though, may still apply when the
employees make statements relating to their public employment; the question
“is whether the speech at issue is itself ordinarily within the scope of an
employee’s duties, not whether it merely concerns those duties.”

Lane v.

Franks, 134 S. Ct. 2369, 2379 (2014).
We must also discuss governmental contractors. The complaint alleges
the plaintiffs made most of their statements while they worked for a college
with a contract with the Harris County Sheriff’s Office.

Claims by

governmental contractors that their speech caused retaliation against them by
the government are analyzed using the same framework as that for claims by
public employees. Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 684-85
(1996). We applied the public-employee framework in Kinney, holding that
instructors employed by a college that provided training to police were subject
to “the requisite governmental power” for that framework to apply. 367 F.3d
at 357-58.
If the plaintiffs made statements relevant to their retaliation claims that
are not subject to the analysis for public employees, we evaluate those under
these requirements applicable to private citizens:
(1) they were engaged in constitutionally protected activity, (2) the
defendants' actions caused them to suffer an injury that would
chill a person of ordinary firmness from continuing to engage in
that activity, and (3) the defendants' adverse actions were
substantially motivated against the plaintiffs' exercise of
constitutionally protected conduct.
Keenan v. Tejeda, 290 F.3d 252, 258 (5th Cir. 2002) (citations omitted).

9

Case: 13-20569

Document: 00513087139

Page: 10

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
B. Applying the law to the allegations in the complaint
We now turn to assessing the complaint. Culbertson resigned from HPD
on May 2, 2011; her final day of work was May 13. Her claims are based on
alleged retaliation for testimony she gave in court the week of May 23, other
testimony she gave in July, comments she made in a meeting with the DA’s
Office in August, and comments she made that were published in newspaper
articles in September and October. Wong resigned on an unstated day in
March 2011. He alleged retaliation due to comments he made to Houston’s
Chief of Police just before his last day with HPD, and comments he made to his
supervisor at the crime lab around the time of his departure and again not long
thereafter. Wong was also quoted in the September newspaper article. The
complaint refers to Wong when describing Culbertson’s July testimony.
Culbertson testified that Wong, who was also scheduled to testify at the trial,
agreed with her doubts about the accuracy of the BAT equipment. Wong did
not actually testify.
In dating the incidents, we interpret the allegations to be that Wong
made unfavorable comments about the BAT–van reliability to the Chief of
Police just before his HPD employment ended, that Wong’s criticism of the BAT
vans to a supervisor may have occurred while he was still employed by HPD,
that Culbertson made unfavorable comments in testimony after she left HPD
but due to work on cases she performed while still employed there, and that
she testified Wong felt the same. Finally, a newspaper published statements
by them months after their resignations, but the complaint does not state
whether they talked to a reporter or comments to others were simply quoted.
The complaint also alleged that both Wong and Culbertson went to work
for Lone Star College as technical supervisors on a contract between the college
and the Harris County Sheriff’s Office. The Contract, which had been in place
10

Case: 13-20569

Document: 00513087139

Page: 11

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
for decades, was to provide technical supervisors to oversee Harris County
Sheriff’s Office’s breath alcohol testing program. Wong began work at Lone
Star in March 2011, while Culbertson began there in May 2011.
1. Pre-termination statements
There is only one clear allegation that opinions expressed while still
working for HPD led to retaliation. The claim is based on Wong’s conversation
with the Chief of Police. Another alleged conversation with a supervisor may
also have been pre-departure. We consider these claims first.
We know from Ceballos, as refined by Lane, that if those conversations
were part of Wong’s official duties, there is no First Amendment protection.
Ceballos, a supervisor in a district attorney’s office, doubted the veracity of an
affidavit that was used by someone else to gain a search warrant; Ceballos
reported his findings to his superiors. Ceballos, 547 U.S. at 413-14. Ceballos
was called to testify at a hearing. Id. at 414-15. He later suffered what he
perceived to be retaliation from his superiors. Id. The Supreme Court held
that there may be First Amendment protection for comments made privately
within the employment setting. Id. at 420. Ceballos’s comments, though, were
part of his official duties and were not protected. Id. at 421.
Wong does not assert that the statements he made to the Police Chief
and the supervisor before leaving HPD was a job duty. The complaint has no
direct allegations about job duties, and there was no argument in the district
court that such allegations were required. The issue of job duties came up in
the motion to dismiss and in the response, as the briefing cited the caselaw
whose applicability turns on whether speech was a job duty. The district
court’s opinion did not rely in its analysis on whether any of the speech was a
job duty. Relying thus only on the complaint, we cannot conclude that the pre11

Case: 13-20569

Document: 00513087139

Page: 12

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
termination statements are unprotected speech performed as part of the
plaintiffs’ job duties under Ceballos or Lane.
In assessing the sufficiency of the complaint as to Wong’s pretermination statements, we apply the four factors applicable to analyzing the
First Amendment rights of public employees: (1) an adverse employment
decision, (2) the speech involved a matter of public concern, (3) the relative
balance of the plaintiff's and the governmental defendant's interests, and (4)
causation. Kinney, 367 F.3d at 356. There is an extra analytical step here,
though, because by the time the adverse employment decision was made, Wong
was working for Lone Star College. The public employee analysis still applies
as Wong worked for a governmental contractor and was sufficiently subject to
the indirect effects of the exercise of governmental power. Id. at 357-58.
The first factor, the suffering of an adverse employment action, is met by
the complaint’s allegations that Wong lost his position at Lone Star. The
second factor is also satisfied, that Wong’s speech about the unreliability of the
breath alcohol testing can be considered a matter of public concern.

We

analogize that speech to the statements in Kinney in which it was not even
disputed that the testimony about possible improper police conduct was a
matter of public concern. Id. at 361. We do not at this point apply the third
factor of comparing the plaintiffs’ interest in speaking to the governmental
defendant's interest in promoting efficiency, as the district court should
conduct the initial balancing inquiry. It is the final factor, whether protected
speech motivated the defendant's conduct, which controls the outcome now.
We will address that factor later, after considering some of the other claims.
2. Post-termination statements
We now turn to claims based on comments the plaintiffs made after they
were no longer employed by HPD. Culbertson claims there was retaliation for
12

Case: 13-20569

Document: 00513087139

Page: 13

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
testimony in court in late May and in July. That testimony reasonably appears
from the allegations of the complaint to have resulted from work she did while
still at HPD, i.e., she was testifying as to BAT results that were determined
before she left HPD.

The testimony was relevant to whether a criminal

defendant should be found guilty. The testimony was not given to someone
independently investigating problems with the testing, such as a legislative
committee or a grand jury. Testifying as a witness in the prosecution of those
who her lab results showed had violated the law had been part of her official
HPD duties. There would be no First Amendment protection for the testimony
had Culbertson still been employed by HPD because testifying about lab
results was one of her job duties. See Ceballos, 547 U.S. at 421. Our different
question is the applicability of the First Amendment to testimony by former
employees about matters lingering from their work.
The pleadings in this case contain no allegation of whether HPD imposed
on Culbertson or Wong a continuing duty to testify in cases on which they had
worked while still employed. It may be of some importance that plaintiffs were
allegedly subpoenaed as witnesses. In considering the range of job duties, we
also note the admonition in Ceballos, that “excessively broad job descriptions”
created by employers could unduly limit First Amendment rights. Id. at 424.
Determining job duties is meant to be a practical inquiry. Id. 2 We conclude
that at this stage in the case, that inquiry is premature. We leave the issue
open for consideration on remand. Did Culbertson or Wong have a duty, either
Harris County argues that because those who have prepared lab reports are
necessary witnesses for the introduction of those reports at trial, such testimony is part of
the lab employees’ duties even after they leave their lab positions. See Bullcoming v. New
Mexico, 131 S. Ct. 2705, 2716 (2011) (plurality opinion). Confrontation Clause analysis about
what witnesses the prosecution must offer at trial is not controlling in First Amendment
analysis about the job duties of former public employees who would be those witnesses.
Bullcoming shows why prosecutors might want such testimony to be a duty, but it does not
prove that the post-employment testimony is one.
2

13

Case: 13-20569

Document: 00513087139

Page: 14

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
explicit or in some manner implied, arising from their employment to testify
about results from their lab work even after they were no longer employed
there? Even if such a duty is found to have existed, does it implicate the need
identified in Ceballos for “managerial discipline based on an employee's
expressions made pursuant to official responsibilities[?]” Id. at 424. Whether
the First Amendment protects the testimony is an issue for remand.
Besides the testimony in court, there is a second group of postemployment statements.

Culbertson claimed she suffered retaliation for

comments she made in a meeting with the DA’s Office in August, months after
her resignation, and comments published in a newspaper in September and
October. Wong also made post-employment comments to a supervisor fairly
soon after his departure from HPD, and was quoted in a September newspaper
article. We cannot tell from the complaint if either plaintiff spoke to a reporter
directly or whether comments made to others, including court testimony, were
quoted. From the complaint, it appears at least one of Culbertson’s quoted
comments was not taken from testimony. The complaint does not indicate
whether any of these statements were made as part of official job duties under
the kind of continuing obligation we just applied to post-employment testimony
in court. Thus, the First Amendment potentially will apply.
As private citizens working for a governmental contractor, Culbertson
and Wong’s claim must be analyzed using public-employee standards. See
Kinney, 367 F.3d at 360. We have already held that losing their positions at
Lone Star was an adverse employment action, and the speech about the BAT
vans’ reliability was a matter of public concern. Whether the plaintiffs’ interest
outweighed the governmental ones is a matter initially for the district court.
The difficult question is again whether one or more defendants caused injury
to the plaintiffs due to the exercise of First Amendment rights. We earlier
14

Case: 13-20569

Document: 00513087139

Page: 15

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
deferred consideration of whether comments Wong made before he left his
employment at HPD motivated the cancelling of the Lone Star Contract. To
answer these questions about causation, we need to determine who among the
defendants, if any, caused relevant injury, and whether those defendants were
motivated by the plaintiffs’ exercise of First Amendment rights.
The remaining defendants, after the dismissal of former District
Attorney Lykos in her individual capacity, are former Assistant District
Attorney Palmer and Harris County. There are allegations that Palmer was
involved in a campaign with Lykos to cause Harris County to drop its contract
with Lone Star because of the plaintiffs’ criticism of the integrity of BAT
results. The Contract was not renewed, and Lone Star fairly soon terminated
the plaintiffs who had been hired to perform work under the Contract. The
question for us is whether causation has been plausibly alleged, i.e., was Harris
County’s non-renewal of the Contract motivated by the plaintiffs’ speech, and
if so, did the non-renewal cause the plaintiffs to lose their jobs?
The Harris County Commissioners Court made the decision that led to
the loss of the plaintiffs’ employment. We examine that decision.
3. Harris County Commissioners Court
The decision-maker on non-renewal of the Contract was the Harris
County Commissioners Court. That “court” is actually the principal governing
body for a Texas county. TEX. CONST. ART. V, § 18(b). It is comprised of four
commissioners elected from districts and a county judge elected countywide.
Id. § 15, 18(b). The Commissioners Court may contract for law enforcement
services. TEX. LOC. GOV’T. CODE § 351.061. It also approves the budget for the
county and may make changes in a proposed budget as it finds warranted by
the facts and law.

Id. § 111.068.

Neither party disputes that the
15

Case: 13-20569

Document: 00513087139

Page: 16

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
Commissioners Court is a final policymaker for Harris County in the area of
contracting and budgeting.
If a final policymaker approves a subordinate’s recommendation and also
the subordinate’s reasoning, that approval is considered a ratification
chargeable to the municipality. World Wide St. Preachers Fellowship v. Town
of Columbia, 591 F.3d 747, 755 (5th Cir. 2009) (citing City of St. Louis v.
Praprotnik, 485 U.S. 112, 127 (1988)). This theory of ratification has been
limited to “extreme factual situations.” Id. (citation and quotation marks
omitted).
On appeal, plaintiffs argue that their complaint supports that the
Commissioners Court was responsible for retaliation based on its ratification
of Lykos’s and Palmer’s recommendations or because it “rubber-stamped” the
recommendations knowing of the motives behind them. Lykos and Palmer
allegedly met privately with representatives from the Commissioners Court to
discredit the plaintiffs, and recommended to the Commissioners Court that the
Contract be awarded to DPS. In a public meeting of the Commissioners Court,
one of the Commissioners stated he did not believe Harris County should work
with someone who is adversarial to the DA’s Office. Three weeks after this
meeting, the Commissioners Court approved a budget which provided for the
Contract to be awarded to DPS.
Under the theory of ratification, it is not enough that the Commissioners
Court approved Palmer’s and Lykos’s recommendation.

A plaintiff “must

impute [the defendant’s] allegedly improper motives to the board by
demonstrating that the board approved both [the defendant’s] decision and the
basis for it.” Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 603 (5th Cir.
2001) (citing Praprotnik, 485 U.S. at 127). Beattie was a secretary whose
annual contract was not renewed by the school board. Id. at 599. She alleged
16

Case: 13-20569

Document: 00513087139

Page: 17

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
that the superintendent wanted her fired because Beattie had supported the
superintendent’s opponent in the most recent election.

Id.

On summary

judgment, the board members provided affidavits stating they were unaware
of Beattie’s political activities and had made their decision based on complaints
she was rude to teachers, parents, and students. Id. at 600. We held that
Beattie had not shown causation. Id. at 605. There was no evidence the board
was even aware of the superintendent’s retaliatory purposes. Id.
We are at an earlier stage of the proceedings than were the parties in
Beattie. This case was dismissed on the pleadings. The complaint alleges that
there were meetings between Lykos, Palmer, and “representatives” of the
Commissioners Court. The complaint refers to newspaper articles setting out
the controversies about the BAT vans. The Commissioners, at a public meeting
a few weeks before approving the new budget, heard from criminal defense
counsel about the controversies, including that the proposal to drop the Lone
Star Contract was in retaliation for Culbertson’s and Wong’s criticisms of
HPD’s failure to address problems with the BAT vans. There is also an
allegation that one Commissioner, at the meeting where defense counsel spoke,
stated that he did not think the County should contract with those who took
an adversarial position with the DA’s Office.
A plausible claim has been stated that the Commissioners knew about
the reasons for Lykos’s and Palmer’s recommendations, and it then ratified
them, i.e., it approved the recommendation and the reasoning. Whether
evidence developed through discovery or otherwise would support the
allegations against the County is unknown. Unlike in Beattie, there are no
affidavits from the decision-makers.
Even if the Commissioners Court approved the individual defendants’
reasoning when it failed to renew the Lone Star Contract, which would support
17

Case: 13-20569

Document: 00513087139

Page: 18

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
a finding of ratification, the injury to the plaintiffs was only an indirect result
of that decision. Harris County argues that because it was Lone Star that
terminated the plaintiffs’ employment, the necessary element of causation is
not satisfied. The plaintiffs allege causation by claiming they had been hired
by Lone Star to work on the Contract with the County, with the transfer of the
Contract to DPS “resulting in the end of the[ir] employment” In Kinney, we
rejected an argument that a boycott conducted by police officials of a college’s
police-training program did not cause the termination of the plaintiffs because
their employment was controlled by the college.

367 F.3d at 357-58. It was

enough, we held, that “governmental power [was used] to exert economic
pressure on the instructors' employer in order to achieve” the termination of
the disfavored instructors; that pressure produced the favored result through
indirect means. Id. at 358. We did state that relative attenuation between the
governmental action and the adverse consequences suffered by plaintiffs bears
on causation, in that it “may be easier for a government official to fire his own
employee than to persuade a contractor to fire one of its employees[.]” Id. We
conclude here that the separation between cause and effect is sufficiently
narrow to satisfy the pleading standard for this suit.
The plaintiffs have alleged enough to survive the motion to dismiss their
claims against the County based on the termination of the Lone Star Contract.
4. Claims against Palmer and Lykos, official and individual capacities
The plaintiffs have pending claims against former District Attorney
Lykos in her official capacity and against former Assistant DA Palmer in her
official and individual capacities.
We start with the claim against former District Attorney Lykos in her
official capacity. The plaintiffs argue that Harris County is liable under Section
18

Case: 13-20569

Document: 00513087139

Page: 19

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
1983 due to the alleged retaliatory campaign Lykos waged against them. The
district court in its opinion dismissing the case remarked that the district
attorney was a state official. If the court meant she was not an official for
which the County could be held responsible, it never explicitly so held. The
County does explicitly argue that Lykos acted on behalf of the state, not the
County, but cites no authority other than the district court. It matters whether
the DA is an official of the County or the state. A lawsuit “against a state
official in his or her official capacity is not a suit against the official but rather
is a suit against the official's office.” Will v. Mich. Dep’t. of State Police, 491
U.S. 58, 71 (1989) (citation omitted). An official-capacity lawsuit is “only
another way of pleading an action against an entity of which an officer is an
agent.”

Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (citation and

quotation marks omitted). When sued in their official capacities, officials “are
therefore representing their respective state agencies . . . .” McCarthy ex rel.
Travis v. Hawkins, 381 F.3d 407, 414 (5th Cir. 2004).

The division of

government in which the official works is responsible for a judgment in an
official-capacity lawsuit. The Supreme Court observed that in three of its prior
Section 1983 opinions, “we have plainly implied that a judgment against a
public servant ‘in his official capacity’ imposes liability on the entity that he
represents provided, of course, the public entity received notice and an
opportunity to respond. We now make that point explicit.” Brandon v. Holt,
469 U.S. 464, 471-72 (1985) (footnote omitted).
As noted, we are directed to no authority to support that the DA should
be considered a state official and not one for the County. The plaintiffs have
cited an opinion of this court that held a county potentially responsible for the
conduct of the district attorney for the county. See Turner v. Upton Cnty., 915
F.2d 133, 138 (5th Cir. 1990). The district covered by that prosecutor included
19

Case: 13-20569

Document: 00513087139

Page: 20

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
more than one county, but we still held the defendant county potentially liable.
Id. at 137-38. The issue of whether the district attorney was a county or state
official was not discussed and may not have been raised. Still, Turner is
authority for the proposition that a county can be responsible under Section
1983 for the actions of its district attorney. We will follow Turner.
The County can be responsible for actions of a final policymaker who has
“the responsibility for making law or setting policy in any given area of a local
government’s business.” Praprotnik, 485 U.S. at 125. Exercising discretion in
an area of governmental action is not enough. The official must be the one
responsible for setting controlling policy:
The fact that a particular official – even a policymaking official –
has discretion in the exercise of particular functions does not,
without more, give rise to municipal liability based on an exercise
of that discretion. The official must also be responsible for
establishing final government policy respecting such activity
before the municipality can be held liable.
Pembaur v. City of Cincinnati, 475 U.S. 469, 481-83 (1986) (citation and footnote
omitted). The Court went on to say that “municipal liability under § 1983
attaches where – and only where – a deliberate choice to follow a course of action
is made from among various alternatives by the official or officials responsible
for establishing final policy with respect to the subject matter in question.” Id.
at 483-84 (citation omitted). Thus, a single decision by a policymaker to follow
a course of action can be considered municipal policy.
The question of “‘[w]hether a particular official has final policymaking
authority is a question of state law.’” Rivera v. Houston Indep. Sch. Dist., 349
F.3d 244, 247 (5th Cir. 2003) (emphasis in original) (quoting Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). The plaintiffs argue that Lykos’s
retaliatory actions “relate to her administrative and managerial duties” and
20

Case: 13-20569

Document: 00513087139

Page: 21

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
thus “implicate her role as a final policymaker.” In the complaint, the policy is
described as one “of retaliation for the exercise of lawful rights.”
It should go without saying that no state statute or County directive in
any form has given district attorneys authority to retaliate against individuals
for exercising their First Amendment rights. Still, we have held that improper
conduct by a policymaker can be a policy. In a Section 1983 action, the plaintiff
sued a county for the alleged conspiracy of the sheriff and district attorney to
subject her to a “sham” trial. Turner, 915 F.2d at 134. We held that the “[t]he
sheriff’s and the district attorney’s alleged participation in the conspiracy, if
proven, will suffice to impose liability on the county.” Id. at 137. In doing so,
we held that the sheriff was a final policymaker for the county in the area of
“preserving the peace in his jurisdiction and arresting all offenders.” Id. at
136. We did not hold that the district attorney was a final policymaker for any
relevant function but held he was a possible co-conspirator for which the
county might be liable. Id.
In this case, a possible area of policy-making responsibility for a district
attorney is to determine what witnesses to use in prosecutions. Arguably,
then, Lykos was a final policymaker for purposes of a retaliation campaign to
keep public employee or contractor witnesses who testified in an unsatisfactory
way from being used in the future. The complaint alleges that the DA’s Office
decided no longer to use either plaintiff as witnesses. That possible injury –
no longer being able to testify – is not the injury we have held is relevant here.
Instead, it was the County’s failure to renew the Lone Star Contract and the
plaintiffs’ consequent loss of their employment. Lykos quite clearly was not
the final policymaker on that decision. If she were, no campaign would have
been necessary to convince the Commissioners Court of anything.

21

Case: 13-20569

Document: 00513087139

Page: 22

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
The plaintiffs have not stated a claim against Harris County based on
Lykos’s actions in her official capacity, as they have not alleged sufficient facts
to show Lykos is a final policymaker as to the policy at issue.
The other individual defendant, Palmer, is subject to claims in her
official and individual capacities. The plaintiffs allege Harris County is liable
for Palmer’s actions because Lykos “delegated her policymaking authority to
Palmer . . . .” Because we have held that Lykos was not a final policymaker,
there was no final authority to delegate to Palmer. To the extent the plaintiffs
allege that Palmer herself had undelegated final policymaking authority, we
find no legal support for that contention.
The plaintiffs also allege that Harris County is liable pursuant to the
“DA’s failure to adequately train and supervise assistant district attorneys so
as to prevent . . . unlawful retaliatory conduct . . . .” In order to succeed on a
failure to train and supervise claim, the plaintiff must plead facts sufficient to
show the municipality was “deliberately indifferent” to the obvious need for
training and supervision. Peterson v. City of Fort Worth, 588 F.3d 838, 849-50
(5th Cir. 2009). It must be “obvious” to the municipality that the alleged
unconstitutional conduct was the “highly predictable consequence” of not
training or supervising its municipal actors. Id.
The plaintiffs have alleged no facts as to the lack of a training program,
nor are there sufficient allegations to support a contention that it was obvious
to Harris County that the lack of training or supervision would result in the
retaliation by prosecutors or others against other public employees or
governmental contractors. There would also need to be allegations that the
alleged retaliatory conduct occurred with such frequency that Harris County
was put on notice that training or supervision was needed. See id. at 849-50.
No such allegations have been made.
22

Case: 13-20569

Document: 00513087139

Page: 23

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
Finally, we address the claims against Palmer in her individual capacity.
In Beattie, a similar issue was discussed. After this court held that the school
board was not liable, we then considered as a separate issue the individual
liability of principal Acton and school superintendent Jones who allegedly
retaliated against Beattie by recommending her termination. 254 F.3d at 60405. We noted that the principal and superintendent could not directly cause
the adverse decision but only recommend it to the school board. Id. at 605. We
then stated: “If Acton and Jones did not cause the adverse employment action,
they cannot be liable under § 1983, no matter how unconstitutional their
motives.” Id. In context, the court might have been stating that Acton and
Jones could be liable if their retaliation for Beattie’s exercising her First
Amendment rights led to her termination. That is not what happened. The
individual defendants’ potentially retaliatory motives had been displaced by
other motives: “Because the board fired Beattie for permissible, constitutional
motives independently of Acton's and Jones's recommendation, that
superseding cause shields them from liability.” Id. We then continued our
analysis after finding Acton and Jones had not “caused” the adverse action. Id.
Beattie argued the connection between the recommendation and the board’s
action was proven by temporal proximity, but we held that was not enough.
Id. Our conclusion as to the individual liability of the two officials was that
because the ultimate decision was made by the board “independently of these
unproven unconstitutional aims, summary judgment was proper.” Id. We did
not necessarily hold that there was no individual liability simply because the
board made the decision.
A decision that predates Beattie required only that a plaintiff show “an
affirmative causal link” between a school principal’s recommendation to
reassign an athletic director and the school district’s decision to do so. Jett v.
23

Case: 13-20569

Document: 00513087139

Page: 24

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
Dallas Indep. Sch. Dist., 798 F.2d 748, 758 (5th Cir. 1986), aff’d in part,
remanded in part on other grounds, 491 U.S. 701 (1989). In Jett, it did not
matter that the individual defendant had no authority to make the actual
transfer decision. Some later decisions, though, have interpreted Beattie to
hold that “only final decision-makers may be held liable for First Amendment
retaliation under § 1983.” Johnson v. Louisiana, 369 F.3d 826, 831 (5th Cir.
2004) (citation omitted); see also Whiting v. Univ. of S. Miss., 451 F.3d 339,
350-51 (5th Cir. 2006) (analyzing Beattie and holding defendant not liable for
First Amendment violation where he was not the final decision-maker).
There is some tension in these precedents. It can at least be said that
before Palmer could be individually liable despite not being the final decisionmaker, it must be shown that her recommendation was made in retaliation for
constitutionally protected speech and was the reason the adverse employment
decision was made by the final decision-maker. A “superseding cause” would
shield Palmer from liability. Beattie, 254 F.3d at 605. Discovery may provide
evidence of the Commissioner’s motivations. If so, then how, if at all, Palmer’s
actions impacted the decision might be better understood.
The plaintiffs also rely on Palmer’s other retaliatory actions, such as
discrediting them as technical supervisors, harming their reputations,
threatening their licensing as technical supervisors and investigating
Culbertson for perjury.

Harm to reputations sounds in defamation. The

plaintiffs have presented little in their briefing to assist us in understanding
these claims as brought under the First Amendment. The claims here are
similar to those in one of our precedents where we held that false accusations
and investigations that do not lead to arrest or indictment are not actionable
under the First Amendment. Colson v. Grohman, 174 F.3d 498, 511-12 (5th
Cir. 1999).

Statements by a public official that place a stigma on an
24

Case: 13-20569

Document: 00513087139

Page: 25

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
individual’s reputation are not actionable without more. Paul v. Davis, 424
U.S. 693, 710-11 (1976). This court has interpreted Paul to require a showing
– an allegation at this stage – of the stigmatizing public statements and “an
infringement of some other interest.” Breaux v. City of Garland, 205 F.3d 150,
158 n.14 (5th Cir. 2000) (citations and quotation marks omitted).

The

plaintiffs’ briefs on appeal do not explore the constitutional dimensions of this
claim with any degree of clarity, and do not cite Paul, Breaux, or related
caselaw.

Instead, their arguments on these other events are primarily

discussed as state-law tortious interference claims. That is where we will place
our analysis of them later in the opinion. The First Amendment claims based
on asserted injuries other than the decision by the Commissioners Court not
to renew the Contract with Lone Star were properly dismissed.
As of this point in our analysis, then, the plaintiffs’ claims against
Palmer based on some of the statements they made after they had left
employment at HPD and Wong’s statement just before leaving, have satisfied
the test for retaliation by the government based on public-employee speech.
An open question on remand is whether Culbertson’s testimony made as a
former employee is relevant in the analysis. We next turn to immunity.
C. Palmer’s prosecutorial or qualified immunity
In the district court, Palmer raised the defenses of absolute prosecutorial
immunity and qualified immunity. Though these arguments were briefed in
the district court, the court did not rule on them in light of the dismissal of the
claims on other grounds. On appeal, the arguments have again been briefed.
We may consider arguments not ruled upon by the district court so long as they
were raised below. See Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014).
Prosecutors enjoy absolute immunity from suit for performing actions
associated with the judicial process. Imbler v. Pachtman, 424 U.S. 409, 427,
25

Case: 13-20569

Document: 00513087139

Page: 26

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
430 (1976).

This immunity arises from the public interest in shielding

prosecutors from liability so they may exercise independent judgment when
deciding which suits to bring and how to present them in court. See Kalina v.
Fletcher, 522 U.S. 118, 125 (1997).

Actions that are performed by the

prosecutor merely in an investigatory capacity, however, similar to the actions
of other law enforcement officers, are only entitled to qualified immunity. Id.
Palmer’s actions here are not the most obvious fit for absolute prosecutorial
immunity. We see no reason to resolve the issue, though, because we agree
with Palmer’s alternative arguments about qualified immunity.
Qualified-immunity analysis requires that we “determine whether the
plaintiff has suffered a violation of his constitutional rights and, if so, whether
a reasonable official should have known that he was violating the plaintiff's
constitutional rights.” Murray v. Earle, 405 F.3d 278, 285 (5th Cir. 2005)
(citation omitted). We have held there is enough in the complaint to support
the claim that Palmer’s actions violated the plaintiffs’ constitutional rights to
survive a motion to dismiss. Even if that is so, Palmer argues she is entitled
to qualified immunity because, in light of Beattie, the law was not clearly
established that a mere recommendation of termination to a higher authority
who makes the final decision causes an adverse employment action.
We have already noted ambiguity as to the liability of a person for
recommending an adverse employment decision. “The doctrine of qualified
immunity protects government officials from liability for civil damages insofar
as their conduct does not violate clearly established statutory or constitutional
rights of which a reasonable person would have known.” Stanton v. Sims, 134
S. Ct. 3, 4-5 (2013) (citation and quotation marks omitted). It was unsettled at
the time of Palmer’s actions, and remains so now, whether someone who is not
a final decision-maker and makes a recommendation that leads to the plaintiff
26

Case: 13-20569

Document: 00513087139

Page: 27

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
being harmed can be liable for retaliation under Section 1983. Cf. Beattie, 254
F.3d at 595, 604-05; Jett, 798 F.2d at 758; Johnson, 369 F.3d at 831. In fact,
some clear statements in the caselaw have held there can be no liability. E.g.,
Whiting, 451 F.3d at 351.
We conclude the claims against Palmer should be dismissed based on
qualified immunity.
D. Pleading of municipal liability
In addition to the claim against Harris County based on the decision by
the Commissioners Court to cancel the Lone Star Contract, Culbertson and
Wong also argue that the County is liable for retaliation because of a de facto
policy or custom of retaliation for the exercise of First Amendment rights.
For municipal liability to arise under Section 1983 from actions by
officials that caused a deprivation of the constitutional rights of others, there
must be shown “a policymaker; an official policy; and a violation of
constitutional rights whose ‘moving force’ is the policy or custom.” Piotrowski
v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001) (quoting Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 694 (1978)). A municipality’s liability is “based on
causation rather than respondeat superior.” Bolton v. City of Dallas, Tex., 541
F.3d 545, 548 (5th Cir. 2008) (citing Monell, 436 U.S. at 692). “Consequently,
the unconstitutional conduct must be directly attributable to the municipality
through some sort of official action or imprimatur; isolated unconstitutional
actions by municipal employees will almost never trigger liability.” Piotrowski,
237 F.3d at 578 (citations and footnotes omitted).
We have already held that the district attorney was not a final policymaker for the claimed policy here.

A policy, though, may be officially

promulgated by the governing body, by an official to which policy-making
27

Case: 13-20569

Document: 00513087139

Page: 28

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
authority has been properly delegated, or by officials or employees of the
municipality through a “persistent, widespread practice” that is “so common
and well settled as to constitute a custom that fairly represents municipal
policy.” Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984).
The claimed de facto policy of retaliation, plaintiffs allege, can be inferred
from the number of individuals in the DA’s Office who participated in the
campaign against them and the “very public nature” of the campaign. The
plaintiffs also alleged in the complaint that during the grand jury investigation
into the BAT vans, Lykos investigated members of the grand jury and of the
prosecutors who conducted the grand jury investigation. Such an act is said
also to reflect a policy of retribution.
The plaintiffs’ complaint falls short of alleging that Harris County had a
“persistent, widespread practice” of retaliation for the exercise of First
Amendment rights. In one of our precedents, the plaintiff brought a Section
1983 action against a city alleging officers used excessive force when arresting
him. Peterson, 588 F.3d at 842. Because there was no written policy in place,
the plaintiff argued there was a widespread practice of excessive force that
established a de facto policy of the city. Id. at 850. The plaintiff claimed there
were 27 prior incidents of excessive force over the course of three years. Id.
We noted that the legal question presented was “whether the 27 complaints on
which Peterson relies are sufficient to establish a pattern of excessive force
that can be said to represent official policy.” Id. We held the prior incidents
insufficient.

Id. at 851.

In doing so, we noted that a pattern requires

“sufficiently numerous prior incidents as opposed to isolated instances.” Id.
(citation and quotation marks omitted).
Here, the plaintiffs allege there was a retaliatory campaign against them
and a retaliatory investigation against the grand jury and its prosecutors, all
28

Case: 13-20569

Document: 00513087139

Page: 29

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
arising from the same predicate events. The retaliatory campaign against
them was publicly known, but they offered no evidence that similar retaliation
had victimized others.

There was, in other words, no allegation of a

“widespread practice” of retaliation that is “so common and well settled” as to
constitute the policy of Harris County. See Webster, 735 F.2d at 853.
The allegations in this case are limited to the events surrounding the
plaintiffs. That is not an allegation of a de facto policy of retaliation by the
County.

Harris County’s potential liability rests solely on the actions of the

Commissioners Court in cancelling the Lone Star Contract.
II. Tortious interference claims
The district court dismissed the plaintiffs’ claims against the individual
defendants for tortious interference with a contract and tortious interference
with prospective contractual relations under the TCPA.
The district court then held that, regardless of the TCPA, Culbertson and
Wong failed to state a claim against Palmer under Rule 12(b)(6) as to either
tortious interference claim. The court in effect held the complaint alleged
nothing to support interference. “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (citation and
quotation marks omitted). Neither in the district court nor here has Palmer
presented an argument with supporting authority regarding immunity as to
these state-law claims, so we do not consider that question.
Culbertson and Wong claim that Palmer was a leader in the effort to
award the Contract to DPS rather than Lone Star and that her actions
constitute tortious interference.

The plaintiffs do not claim that Palmer

tortiously interfered with the Contract between Lone Star and Harris County.
29

Case: 13-20569

Document: 00513087139

Page: 30

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
Instead, they claim Palmer interfered with their employment contract with
Lone Star and that her interference caused their termination.
The Texas Supreme Court has identified the elements of a tortious
interference with an existing contract as: “(1) an existing contract subject to
interference, (2) a willful and intentional act of interference with the contract,
(3) that proximately caused the plaintiff’s injury, and (4) caused actual
damages or loss.” Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29
S.W.3d 74, 77 (Tex. 2000) (citation omitted). There was an existing contract
here. The second through fourth elements are at issue.
On the second factor, the Texas Supreme Court has held that
“[i]nterference with contract is tortious only if it is intentional.” Sw. Bell Tel.
Co. v. John Carlo Tex., Inc., 843 S.W.2d 470, 472 (Tex. 1992) (citations
omitted). Intent requires that “the actor desires to cause the consequences of
his act, or that he believes that the consequences are substantially certain to
result from it.” Id. (citation and quotation marks omitted). The defendants
argue that Lone Star’s termination of the plaintiffs’ employment may have
been inevitable once the Contract with the County was lost, but the intent of
the defendants’ campaign was limited to cancelling Lone Star’s Contract.
Palmer cites a state intermediate appeals court decision to support the
argument. See Mabry v. Sam’s E., Inc., No. 05-05-00170-CV, 2006 WL 2348953
(Tex. App.–Dallas Aug. 15, 2006, no pet.) Plaintiff Mabry, a customer service
technician for Southwestern Bell Telephone, took an item from Sam’s Club,
without paying, while on a lunch break from work.

Id. at *1.

He was

confronted by a Sam’s Club employee. Id. Upset with the way he was treated,
Mabry returned to Sam’s Club several days later to complain. Id. One of Sam’s
Club’s employees called Southwestern Bell to report Mabry’s conduct; Mabry
was fired. Id. at *2. Mabry sued Sam’s Club for tortious interference with his
30

Case: 13-20569

Document: 00513087139

Page: 31

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
employment contract.

Id.

The appellate court affirmed the summary

judgment because “Mabry had to show that Sam’s [Club and its employee]
intended to cause the ultimate outcome – Mabry’s termination of employment
. . . .” Id. at *5. (citing John Carlo, 843 S.W.2d at 472). The court was “unable
to find any evidence that [the defendants] had an intent to cause Mabry to lose
his job,” and held that the grant of summary judgment was proper. Id.
Mabry is a poor fit. The allegations in the complaint in this case make a
plausible case that Palmer intended to have the Contract with Lone Star
canceled, and as alleged, that the interference “was the proximate cause” of the
plaintiffs’ loss of their jobs. As we quoted above, the Texas standard for the
intent needed for tortious interference is that a defendant “desires to cause the
consequences of his act, or that he believes that the consequences are
substantially certain to result from it.” John Carlo, 843 S.W.2d at 472 (citation
and quotation marks omitted).

The plaintiffs allege that the defendants’

“purpose” was “to harm, discredit, and end the employment of Culbertson and
Wong, in part by transferring the Contract from Lone Star to DPS . . . .” We
discover more than mere conclusory allegations in the complaint that Palmer
had the necessary intent because she would have known that the consequence
of cancellation of a contract that the plaintiffs had been hired to work on would
quite likely be that those new hires would lose their jobs. These claims were
not “‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 557).
As to the third prong of a tortious interference with contract claim,
Culbertson and Wong must establish Palmer proximately caused their
termination. “The test for cause in fact is whether the defendant’s conduct was
a substantial factor in bringing about the injury without which the harm would
not have occurred.” Fin. Review Servs., Inc. v. Prudential Ins. Co. of Am., 50
31

Case: 13-20569

Document: 00513087139

Page: 32

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
S.W.3d 495, 509 (Tex. App.—Houston [14th Dist.]1998), aff’d, 29 S.W.3d 74
(Tex. 2000). The district court held that the plaintiffs “have no plausible causal
chain.” The court considered that “[b]oth the Commissioners Court and [Lone
Star] College were independent actors who could have decided differently.”
That is true, but the complaint alleges that Palmer pursued a goal of having
the Commissioners Court cancel the Contract, which it did, and the complaint
also supports that Lone Star’s losing the Contract would lead to the plaintiffs
losing their jobs. We have already held this to be sufficient causation for the
Section 1983 claim.

We find the same to be true here. The plaintiffs have

sufficiently alleged that Palmer’s conduct was a “substantial factor in bringing
about” their termination from Lone Star “without which the harm would not
have occurred.” See id.
Because the plaintiffs’ complaint contains “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face,” we find
there is a sufficient claim against Palmer for tortious interference with the
plaintiffs’ employment contract with Lone Star. Iqbal, 556 U.S. at 678 (citation
and quotation marks omitted).
The plaintiffs next argue that Palmer tortiously interfered with their
prospective contractual relations.

In order to prevail on such a claim, a

plaintiff must show:
(1) there was a reasonable probability that the parties would have
entered into a contractual relationship; (2) the defendant
committed an independently tortious or unlawful act that
prevented the relationship from occurring; (3) the defendant did
such act with a conscious desire to prevent the relationship from
occurring or knew that the interference was certain or
substantially certain to occur as a result of his conduct; and (4) the
plaintiff suffered actual harm or damage as a result of the
defendant’s interference.

32

Case: 13-20569

Document: 00513087139

Page: 33

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
Brown v. Swett Crawford of Tex., Inc., 178 S.W.3d 373, 381-82 (Tex. App.—
Houston [1st. Dist.] 2005, no pet.) (citation omitted).
The central problem with this claim is that the plaintiffs do not allege
facts to support the contention that Palmer’s conduct proximately caused the
plaintiffs’ inability to find employment. 3 The plaintiffs do not allege that
Palmer contacted any prospective employers regarding employing either of
them. In fact, there are no facts in the complaint as to Palmer interfering with
any specific prospective business relationship that, but for the alleged
interference, would have been reasonably probable.
Accordingly, the plaintiffs have failed to state a claim for tortious
interference with prospective contractual relations.
III. Texas Citizen’s Participation Act
The TCPA provides an expedited means for dismissing lawsuits that
involve the exercise of certain constitutional rights, including free speech.
Pickens v. Cordia¸433 S.W.3d 179, 181 (Tex. App.—Dallas 2014, no pet.) (citing
TEX. CIV. PRAC. & REM. CODE ANN. § 27.001-011). In determining whether a
legal action should be dismissed, “the court shall consider the pleadings and
supporting and opposing affidavits stating the facts on which the liability or
defense is based.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a). To prevail
on a motion to dismiss under the TCPA, the movant must show by a
preponderance of the evidence that the action is “based on, relates to, or is in
response to, the party's exercise of the right of free speech; the right to petition;
or the right of association.” Id. § 27.005(b)(1)-(3). Other procedures then apply

The plaintiffs do allege that DPS failed to send them proficiency samples (in order
to maintain their technical supervisor certification), but they do not allege that this was at
the direction of Palmer.
3

33

Case: 13-20569

Document: 00513087139

Page: 34

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
if the movant shows that the action is based on, as is relevant here, the exercise
of free speech rights.
We have not specifically held that the TCPA applies in federal court; at
most we have assumed without deciding its applicability. See, e.g., NCDR,
L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 753 (5th Cir. 2014). 4 Because
we determine that the TCPA by its own terms has not been shown to apply, we
again pretermit the fundamental issue of its applicability in federal court.
Palmer, as the party moving to dismiss, bears the initial burden. The
plaintiffs argue that Palmer did not meet that burden as her motion “did not
offer any evidence showing that she engaged in activity protected by the
TCPA.” Instead, “her motion relied exclusively on the allegations in Plaintiffs’
complaint.”

The allegations are that Palmer recommended to the

Commissioners Court that it award the Contract to DPS rather than Lone
Star, she stated at a meeting with representatives of the Commissioners Court
that the plaintiffs could not be trusted, and she had private conversations with
representatives of the Commissioners Court regarding the plaintiffs. Palmer
does not admit to any of this speech, though she also does not deny it.
Several recent Texas appellate court cases, none from the state’s highest
court, conclude the TCPA does not apply if the defendant denies making the
communication at issue. For example, “a defendant who denies making any
communication may not obtain dismissal by also simultaneously claiming that
he was exercising his right of free speech by making a communication.”
Rauhauser v. McGibney, No. 02-14-00215-CV, 2014 WL 6996819 at *5 (Tex.

After oral argument in this matter, the D.C. Circuit declined to apply an Anti-SLAPP
statute’s motion-to-dismiss provision on the ground that it conflicts with Federal Rules of
Civil Procedure 12 and 56. See Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1337 (D.C.
Cir. 2015). Other circuits have applied state Anti-SLAPP statutes’ pretrial dismissal
provisions. See, e.g., Godin v. Schencks, 629 F.3d 79, 81, 92 (1st Cir. 2010); United States ex
rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999).
4

34

Case: 13-20569

Document: 00513087139

Page: 35

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
App.—Fort Worth Dec. 11, 2014, no pet.) (citation omitted).

In another

opinion, a different state appellate court held that because the defendant “has
denied sending the email, we conclude [the TCPA] does not apply to this cause
of action.” Pickens, 433 S.W.3d at 188. The TCPA was similarly held to be
inapplicable in another case when the defendant “claim[ed] that she did not
publish any of the defamatory posts[.]” Am. Heritage Capital, LP v. Gonzalez,
436 S.W.3d 865, 882 n.5 (Tex. App.—Dallas July 1, 2014, no pet.)
Though these decisions are not from the state’s highest court, we
conclude they are persuasive. The Pickens opinion explains that the motion to
dismiss process under the TCPA “is premised on the notion that one purpose
of [the TCPA] is to ‘encourage and safeguard the constitutional rights of
persons to speak freely.’” Pickens, 433 S.W.3d at 188 (quoting TEX. CIV. PRAC.
& REM. CODE ANN. § 27.002). Accordingly, “[g]iven that [the defendant] has
denied sending the email, we conclude [the TCPA] does not apply to this cause
of action.” Id.
The only evidence Palmer offers to show the plaintiffs’ lawsuit is based
on TCPA-protected activity is allegations from the plaintiffs’ own complaint
that Palmer engaged in speech. Palmer does not admit making the relevant
statements. Palmer has not cited any Texas case that specifically holds that a
plaintiff’s own allegations will by themselves satisfy a defendant’s burden
under the TCPA. We will not create such law. 5
Accordingly, the district court erred in dismissing the plaintiffs’ suit
pursuant to the TCPA. The district court later awarded attorneys’ fees, as the
TCPA says it must do: “If the court orders dismissal . . . the court shall award
Palmer cites two Texas cases, but in neither did the court hold that allegations in a
complaint are sufficient to satisfy a TCPA movant’s burden to show that the plaintiff’s suit
is based on free speech. See James v. Calkins, 446 S.W.3d 135, 147-48 (Tex. App.—Houston
[1st Dist.] Aug. 21, 2014, pet. filed); Schimmel v. McGregor, 438 S.W.3d 847, 859 (Tex. App.—
Houston [1st Dist.] 2014, pet. denied).
5

35

Case: 13-20569

Document: 00513087139

Page: 36

Date Filed: 06/22/2015

No. 13-20569 c/w 13-20751
to the moving party . . . court costs, reasonable attorney’s fees, and other
expenses incurred in defending against the legal action as justice and equity
may require.” TEX. CIV. PRAC. & REM. ANN. CODE § 27.009(a)(1). Because the
district court erred in granting Palmer’s motion to dismiss under the TCPA,
attorneys’ fees under that act were not available to Palmer.

The district

court’s order granting attorneys’ fees must be reversed.
IV. Procedural Issues
The plaintiffs argue that the district court’s dismissal under Rule
12(b)(6) without granting their request to amend their complaint warrants
reversing the order of dismissal. Because we are reversing the district court’s
ruling in part, we consider this procedural issue to be moot. The plaintiffs also
argue that the district court may have relied on matters outside the pleadings
in granting the defendants’ Rule 12(b)(6) motions. We do not rely on anything
outside the pleadings as to the dismissals we have affirmed. Our reversal of
the dismissal of the other claims moots the remainder of the issue.
CONCLUSION
The dismissal of Culbertson and Wong’s claims against Harris County
that it ratified Palmer’s and Lykos’s alleged retaliatory campaign is
REVERSED. The dismissal of the tortious interference with a contract claim
is REVERSED. The dismissal of claims due to the TCPA is REVERSED, and
the award of attorneys’ fees is REVERSED. In all other respects, including the
dismissal of retaliation claims against Palmer in her individual capacity, the
judgment of the district court is AFFIRMED. The case is REMANDED for
further proceedings.

36