Hatten v. Mathis et al

Filing 91

MEMORANDUM OPINION AND ORDER. Signed by Magistrate Judge Roy S. Payne on 9/1/2016. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
MARSHALL DIVISION
BILLY HATTEN

§
§
§
§
§

v.
JOHN MATHIS, et al.

Case No. 2:15-cv-601-RSP

MEMORANDUM OPINION AND ORDER
Before the Court is Defendant Gregg County’s Motion for Summary Judgment (Dkt. No.
66) and Plaintiff Billy Hatten’s Motion for Summary Judgment (Dkt. No. 67).
I. BACKGROUND
Billy Hatten was employed by Gregg County as the Administrative Superintendent for
Precinct 4 until his job was terminated on October 1, 2014. Hatten had been hired in 2007 by
Gregg County Commissioner John Mathis. Hatten alleges that he was terminated because he ran
against Mathis (and lost) in 2014, and that Mathis retaliated by firing him in violation of his First
Amendment rights.
The Court recommended summary judgment on February 1, 2016, dismissing with
prejudice all of Plaintiff’s claims against Defendant John Mathis on the basis of legislative
immunity. Dkt. No. 26.

Plaintiff thereafter voluntarily dismissed those claims.

Plaintiff’s

surviving claims are against Gregg County.
II. LAW
A. Summary Judgment
Summary judgment should be granted “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). Any evidence must be viewed in the light most favorable to the nonmovant. See
1

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress & Co.,
398 U.S. 144, 158–59 (1970)). Summary judgment is proper when there is no genuine issue of
material fact. Celotex v. Catrett, 477 U.S. 317, 322 (1986). “By its very terms, this standard
provides that the mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment; the requirement is that
there be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48. The substantive law
identifies the material facts, and disputes over facts that are irrelevant or unnecessary will not
defeat a motion for summary judgment. Id. at 248. A dispute about a material fact is “genuine”
when the evidence is “such that a reasonable jury could return a verdict for the nonmoving party.”
Id. The moving party must identify the basis for granting summary judgment and identify the
evidence demonstrating the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.
If the moving party does not have the ultimate burden of persuasion at trial, the party “must either
produce evidence negating an essential element of the nonmoving party’s claim or defense or
show that the nonmoving party does not have enough evidence of an essential element to carry its
ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos., Inc., 210
F.3d 1099, 1102 (9th Cir. 2000).
B. First Amendment Retaliation
To establish a prima facie case of retaliation for the exercise of First Amendment rights, a
plaintiff must show that: (1) he suffered an adverse employment action; (2) his speech involved a
matter of public concern; (3) plaintiff’s interest in the speech outweighed defendant’s interest in
promoting government efficiency; and (4) the protected speech caused the adverse employment
decision. Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir. 2004); Beattie v. Madison County Sch.
Dist., 254 F.3d 595, 601 (5th Cir. 2001).
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The third factor entails balancing the plaintiff’s speech interest against the defendant’s
interest in promoting government efficiency. Five nonexclusive factors are considered in this
balancing test:
(1) the degree to which the employee’s activity involved a matter of public
concern; (2) the time, place, and manner of the employee’s activity; (3) whether
close working relationships are essential to fulfilling the employee’s public
responsibilities and the potential effect of the employee’s activity on those
relationships; (4) whether the employee’s activity may be characterized as hostile,
abusive, or insubordinate; (5) whether the activity impairs discipline by superiors
or harmony among coworkers.
Jordan v. Ector County, 516 F.3d 290, 299 (5th Cir. 2008). In “cases involving public employees
who occupy policymaker or confidential positions . . ., the government’s interests more easily
outweigh the employee’s.” Brady v. Fort Bend County, 145 F.3d 691, 708 (5th Cir. 1998).
Although this balancing test is a question of law, the Fifth Circuit has recognized that it often
involves “factual matters appropriate for determination by a jury.” Id. at 708 n.7.
III. ANALYSIS
A.

Gregg County’s Motion for Summary Judgment

Defendant Gregg County moves for summary judgment of no liability based on factors
three and four of the Alexander test—that Plaintiff cannot prove his First Amendment interest
outweighed the County’s interest in government efficiency, and that Plaintiff cannot prove his
speech caused his termination. Dkt. No. 66.
1.

Balancing Interests

Defendant argues it is entitled to summary judgment that Plaintiff’s protected speech did
not outweigh Defendant’s interest in promoting efficiency. Defendant asserts two bases for this
argument. First, that Plaintiff “held a confidential position as personal staff.” Dkt. No. 66 at 16–
17. Second, even if Plaintiff was not confidential staff, “Plaintiff’s performance and
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behavior . . . places him squarely on the employer’s end of the balancing test, meaning that the
balance favors Defendant.” Id. at 17–19.
This Court previously held that there are material fact disputes about the nature of
Plaintiff’s job duties that prevent summary judgment under a “policymaker” or “confidential
employee” theory:
[Defendant] asserts that he is entitled to qualified immunity because Hatten was a
“confidential employee” or policymaker whose First Amendment rights are
outweighed by his public employer’s interest in promoting the efficient delivery of
public services. See e.g., Wiggins v. Lowndes County, Miss., 363 F.3d 387, 390
(5th Cir. 2004). The Court finds that there are genuine disputes of material fact
concerning whether Hatten’s job duties place him closer to the Road Manager
found to be a policymaker in Gentry v. Lowndes County, Miss., 337 F.3d 481 (5th
Cir. 2003), or the Road Foreman found to be a lower level employee free from
political patronage in Wiggins, supra. Both sides have offered affidavits,
depositions, and employment records painting very different pictures of Hatten’s
duties and responsibilities in ways that would affect the outcome of the balancing
test prescribed by the Fifth Circuit.
Dkt. No. 26 at 1–2. These material disputes about the true nature of Plaintiff’s job duties remain.
In particular, the mere fact that Gregg County described Plaintiff’s position as “personal staff”
does not establish that Hatten was a “policymaker” or “confidential employee” as those terms are
used in Wiggins. Cf. Garcetti v. Ceballos, 547 U.S. 410, 424–25 (2006) (“Formal job descriptions
often bear little resemblance to the duties an employee actually is expected to perform”). These
fact disputes foreclose summary judgment.
Defendant also contends that its interests in maintaining an orderly and efficient
workplace outweigh Plaintiff’s protected speech interests even if Plaintiff’s position was not one
of a policymaker or confidential employee. Defendant contends that Plaintiff exhibited an
“abusive personality,” “was disrespectful to Commissioner Mathis,” and made various derogatory
or offensive remarks to Mathis and others. Dkt. No. 66 at 17–19. Defendant therefore contends it
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was justified in terminating Plaintiff in light of his performance and behavior.
Although Defendant frames this as a balancing argument under the third prong of
Alexander, it is really a causation argument. Defendant is arguing that Plaintiff was terminated for
reasons other than his allegedly protected speech. Defendant does not attempt to argue that it
terminated Hatten because he ran for office against Mathis and that it was justified in doing so.
See Jordan, 516 F.3d at 299 (“We need not pause long on the balancing, for there is no record
evidence

that

Jordan’s

political

activities

caused

disruptions

that

would

justify

termination . . . The purported incidents leading to Jordan’s termination bore no relation to any of
Jordan’s political activities—indeed, Defendants maintain Jordan was not fired because of her
political activities.”).
Viewing this for what it is, a causation argument, there exist material fact disputes about
whether Plaintiff’s “performance and behavior” was a cause of his termination. For example,
Commissioner Mathis testified that Plaintiff was terminated because of restructuring and not due
to his job performance. Dkt. No. 71-2 at 9:11–10:17 (“But it didn’t have to do with his
performance. A. No, huh-uh, no. . . . Any of his write-ups didn’t have anything to do with his
termination. A. No.”). Moreover, Plaintiff submits summary judgment evidence that his alleged
performance issues were pretextual or “bogus” and were manufactured in retaliation for reporting
variances in the precinct’s fuel use or for running against Mathis in the election. See generally
Dkt. No. 71 at 9–12; see also Dkt. No. 71-3 at ¶¶ 17–29, 38. Plaintiff also contends Mathis did
not meaningfully investigate reports of Plaintiff’s alleged bad behavior. Dkt. No. 71-2 at 37:13–
15 (“Q. You didn’t want to get his side of the story, Billy’s side of the story? A. It wasn’t going to
do no good. . . . When people make accusations like that and you confront them, they’re going to
lie. So, why bother?); id. at 61:22–25 (“Q. And then what did Billy say? A. I didn’t talk to Billy.
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Q. You didn’t get Billy’s side of the story? A. No.”). This testimony tends to support Plaintiff’s
assertion that the accusations against him were not the reason he was terminated.
Accordingly, there exist material fact disputes as to whether Plaintiff exhibited
“performance and behavior” issues and whether such issues were a cause of his termination.
2.

Causation

Defendant also argues that it is entitled to summary judgment on the causation element of
the Alexander test because, in Texas, the sole authority for adopting a county’s budget is vested
with the Commissioners Court (Tex. Local Gov’t Code § 111.008) and Plaintiff cannot show that
the Commissioners Court acted with a retaliatory motive when it adopted a budget that eliminated
Hatten’s position. Dkt. No. 66 at 19–28.
Municipal liability for constitutional torts arises when the execution of an official policy
causes the injury. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978). “[A] single action by
a municipal official possessing final policymaking authority regarding the action in question
constitutes the official policy of the municipality.” Brady v. Fort Bend County, 145 F.3d 691, 698
(5th Cir. 1998). Whether a local government official possesses final policymaking authority is a
question of state law. City of St. Louis v. Praprotnik, 485 U.S. 112, 124 (1988).
Plaintiff submits summary judgment evidence that raises a material issue of fact as to
whether Commissioner Mathis acted with a retaliatory motive toward Plaintiff. See, e.g., Dkt. No.
71-3 at ¶22; Dkt. No. 71-2 at 247–49. However, Commissioner Mathis is not subject to liability in
this lawsuit, only Gregg County is. Dkt. No. 26. Therefore Plaintiff must carry his summary
judgment burden as to one or more of the following theories of liability: (1) that Mathis had final
policymaking authority on behalf of Gregg County to terminate Hatten, (2) that the
Commissioners Court “rubber stamped” Mathis’s decision, or (3) that the Commissioners Court
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approved Mathis’s decision and ratified the allegedly retaliatory basis for that decision.
Plaintiff contends that “Mathis, not the Commissioners Court, not the County Judge, and
not the Human Resources Department made the decision about who had a job at Precinct 4 and
who did not.” Dkt. No. 71 at 27. Notwithstanding the Commissioners Court’s power of the purse,
Plaintiff argues that the County Commissioner is the official who decides who to hire and fire in
his precinct. Id. at 27–28. Plaintiff submits evidence that commissioners had the authority to hire
and fire their staff. See Dkt. No. 71-2 at 142:5–7 (“I brought my own staff in. Elected officials
like county commissioners, sheriffs and everybody bring their own people in.”); Dkt. No. 71-3 at
¶ 39 (“On August 19, 2014 John Mathis and Rita Fyffe told me that my job was gone”); Dkt. No.
71-4 at 30–35; Dkt. No. 71-12 at 22:2–4 (“Q. You’re going to have to rely on John Mathis’
decision on how he’s going to work his own budget. A. Yes, uh-huh.”); Dkt. No. 71-13 at 22:15–
17 (“Q. So, in terms of hiring and firing people, who does that in your precinct? A. I do 100
percent, nobody else.”).
Whether a local government official possesses final policymaking authority is a question
of law. This court has held that Hatten’s termination was an act of the Commissioner’s Court in
passing the budget. Dkt. No. 26 at 3–4. Commissioner Mathis was a member of the
Commissioner’s Court who participated in that policymaking decision. He therefore possessed
final policymaking authority, as a matter of state law, over the decision to terminate Hatten.
Moreover, under the “rubber stamp” exception, a plaintiff may show that the “ultimate
decision maker’s action is merely a ‘rubber stamp’ for the subordinate’s recommendation.” Rios
v. Rossotti, 252 F.3d 375, 382 (5th Cir. 2001). Even if Mathis had not possessed final
policymaking authority, Plaintiff’s summary judgment evidence would be sufficient to raise a
material question of fact about whether the Commissioner’s Court regularly rubber stamped the
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hiring and firing decisions of elected county officials such as Mathis.
Plaintiff does not present any evidence or argument in support of a ratification theory of
liability. Because Plaintiff’s liability theory survives summary judgment on the issue of causation,
the Court need not address this third, un-asserted causation theory.
B.

Hatten’s Motion for Summary Judgment

Plaintiff Billy Hatten moves for summary judgment that: (1) Gregg County is not
protected from liability by sovereign immunity, (2) that Gregg County has not established
Plaintiff failed to mitigate damages, and (3) that Hatten is not exempt from First Amendment
protections under the Elrod/Branti doctrine. Dkt. No. 67.
1.

Sovereign Immunity

Plaintiff argues it is entitled to summary judgment that Gregg County is not protected
from liability by sovereign immunity. Dkt. No. 67 at 8; Monell v. City of Arlington, 436 U.S. 658,
690 n.54 (1978) (“There is certainly no constitutional impediment to municipal liability. ‘The
Tenth Amendment’s reservation of nondelegated powers to the States is not implicated by a
federal-court judgment enforcing the express prohibitions of unlawful state conduct enacted by
the Fourteenth Amendment.’”) (quoting Milliken v. Bradley, 433 U.S. 267, 291 (1977)).
Defendant does not dispute this; instead Defendant reiterates its causation argument that
Plaintiff must prove a final policymaking authority for Gregg County caused the alleged injury.
Dkt. No. 70 at 13–14. That causation issue has already been addressed supra.
Because Defendant does not contend that sovereign immunity protects Gregg County from
liability, the Court need not address this issue further.
2.

Mitigation of Damages

Plaintiff argues it is entitled to summary judgment on Defendant’s failure to mitigate
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defense. Dkt. No. 67 at 9–11.
Failure to mitigate is an affirmative defense for which the defendant bears the burden of
proof. See NLRB v. Pilot Freight Carriers, Inc., 604 F.2d 375, 377 (5th Cir. 1979). The defendant
must show “not only that the plaintiff[] failed to use reasonable care and diligence, but that there
were jobs available which [he] could have discovered and for which [he] was qualified.” Sparks
v. Griffin, 460 F.2d 433, 443 (5th Cir. 1972). The defendant must prove that the plaintiff could
have obtained “substantially equivalent employment,” meaning “employment which affords
virtually identical promotional opportunities, compensation, job responsibilities, working
conditions, and status.” Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927, 936 (5th Cir. 1996).
Plaintiff argues that Defendant has identified only jobs that were not “substantially
equivalent” to his job as Administrative Superintendent because they paid less or entailed
different skills and duties. See, e.g. Dkt. No. 67 at 10–11. Defendant rejoins that Plaintiff was
compensated above market and that this fact should be taken into account when determining what
constitutes “substantially equivalent employment.” See Hutchison v. Amateur Elec. Supply, Inc.,
42 F.3d 1037, 1067 (7th Cir. 1994). Defendant also argues that if an employer can demonstrate
that the former employee did not exercise reasonable diligence, it need not prove the availability
of equivalent work. West v. Nabors Drilling USA, Inc., 330 F.3d 379, 393 (5th Cir. 2003).
“Whether the plaintiff has engaged in such an effort is a question of fact.” Migis v. Pearle Vision,
135 F.3d 1041, 1045 (5th Cir. 1998).
The Court is persuaded that there are multiple material fact disputes that prevent summary
judgment on the issue of failure to mitigate, including the extent of Plaintiff’s diligence, what
constitutes “substantially equivalent employment” to Plaintiff’s job as Administrative
Superintendent, and whether such employment was available.
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3.

The Elrod/Branti Doctrine

Plaintiff argues that he was not “personal staff” and was therefore not exempt from First
Amendment protections. Dkt. No. 67 at 11–14.
Under Elrod and Branti, an employer is protected from liability under the First
Amendment if the employee was a “policymaker” or “confidential” employee. Elrod v. Burns,
427 U.S. 347, 368 (1976); Branti v. Finkel, 445 U.S. 507, 517 (1980). “A policymaker is an
employee ‘whose responsibilities require more than simple ministerial competence, whose
decisions create or implement policy, and whose discretion in performing duties or in selecting
duties to perform is not severely limited by statute, regulation, or policy determinations made by
supervisors.’” Wiggins v. Lowndes County, 363 F.3d 387, 390 (5th Cir. 2004). “Consideration
should also be given to whether the employee acts as an adviser or formulates plans for the
implementation of broad goals.” Id.
As discussed supra and in the Court’s previous Order (Dkt. No. 26), there are fact
questions about the nature of Hatten’s job duties that prevent summary judgment.
Additionally, the Court notes that the term “personal staff” does not appear in Elrod,
Branti, or Wiggins and the parties’ fixation on this terminology is misplaced. As explained supra,
whether Hatten was designated “personal staff” by Mathis or the County may have some
probative value, but this is not the dispositive question. The relevant question concerns the
specific nature of Hatten’s job duties. Elrod, 427 U.S. at 367 (“The nature of the responsibilities
is critical.”)
IV. CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment (Dkt. No. 66) is
DENIED and Plaintiff’s Motion for Summary Judgment (Dkt. No. 67) is DENIED.
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SIGNED this 3rd day of January, 2012.
SIGNED this 1st day of September, 2016.

____________________________________
ROY S. PAYNE
UNITED STATES MAGISTRATE JUDGE