Dorris v. City of McKinney, Texas et al
MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Defendant Kistner's and Defendant Madrigal's motions to dismiss Plaintiff's claims against them in their individual capacities based on the defense of qualified immunity ( Dkts. #21, #22) are hereby denied. The remainder of Defendant Kistner's and Defendant Madrigal's motions to dismiss were addressed in the Court's October 4, 2016 order (Dkt. #44). Signed by Judge Amos L. Mazzant, III on 4/10/2017. (baf, )
United States District Court
EASTERN DISTRICT OF TEXAS
CITY OF MCKINNEY, TEXAS, DANIEL
KISTNER, NAMED IN HIS INDIVIDUAL
AND OFFICIAL CAPACITIES, AND JOSE
MADRIGAL, NAMED IN HIS
INDIVIDUAL AND OFFICIAL
Civil Action No. 4:16-CV-00069
MEMORANDUM OPINION AND ORDER
Pending before the Court are Defendant Daniel Kistner’s and Defendant Jose Madrigal’s
Motions to Dismiss Plaintiff’s First Amended Complaint, or in the Alternative, Motion for Rule
7(a) Reply (Dkts. #21, #22) and Plaintiff’s Rule 7(a) Reply (Dkt. #45). Having considered the
pleadings, the Court finds that Plaintiff has stated plausible claims to overcome Defendant Daniel
Kistner’s and Defendant Jose Madrigal’s qualified immunity defense. The Court denies Defendant
Daniel Kistner’s and Defendant Jose Madrigal’s motions to dismiss the federal claims against them
in their individual capacities (Dkts. #21, #22).
Plaintiff worked for the City of McKinney, Texas (the “City”) Fire Department from March
2003 to July 16, 2015. During his employment with the Fire Department, Plaintiff served as the
elected president of the International Association of Fire Fighters, Local 2661 (“Local 2661”).
Plaintiff alleges that the City terminated his employment after he organized a photo shoot for Local
2661’s political action committee and its endorsed candidates for City Council. Plaintiff was not
present at the photo shoot. During the photo shoot, photographs were taken of the endorsed
candidates and off-duty members of Local 2661 standing in front of a City fire truck. No City
insignia were visible in the photographs. Plaintiff alleges that he was not personally involved with
the movement of the City fire truck during the photo shoot. The City Attorney’s office had
previously informed Plaintiff that Local 2661 could not use photographs of on-duty fire personnel
for political campaigns, even if all references to the City were removed.
The political action committee and one of the endorsed candidates used the photographs in
political advertisements. After the political action committee posted the photographs on its
Facebook page, City Fire Chief Daniel Kistner (“Defendant Kistner”) asked the City Police
Department to open an administrative inquiry to determine whether the post violated any City
policy or rule. After an initial inquiry, Defendant Kistner commenced a full Internal Affairs
investigation into Plaintiff.
On July 16, 2015, at the conclusion of the Internal Affairs
investigation, Defendant Kistner signed a Notice of Disciplinary Action (the “Notice”) terminating
Plaintiff for violating the City’s policy on insubordination. The Notice stated that Plaintiff failed
to follow an order given by the City Manager’s office not to use City equipment for the purpose
of endorsing candidates and failed to use his chain of command for his request to use City-owned
property. Deputy City Manager Jose Madrigal (“Defendant Madrigal”) approved Plaintiff’s
termination. Plaintiff appealed his termination and on October 23, 2015, three management-level
City officials held an administrative hearing regarding Plaintiff’s appeal. On October 27, 2015,
the City upheld Plaintiff’s termination.
On April 6, 2016, Plaintiff filed his First Amended Complaint alleging that the City,
Defendant Kistner, and Defendant Madrigal violated his rights under the First and Fourteenth
Amendment and under Texas law. On April 20, 2016, Defendant Kistner and Defendant Madrigal
each filed a Motion to Dismiss for Failure to State a Claim, or in the alternative, Motion For Rule
7(a) Reply (Dkts. #21, #22). Defendant Kistner and Defendant Madrigal argued they were entitled
to qualified immunity and requested that the Court order Plaintiff to re-plead his claims against
them to overcome the qualified immunity defense (Dkts. #21, #22).
On October 4, 2016, the Court denied the City’s motion to dismiss the federal claims
against it, but dismissed the state law claims against the City (Dkt. #44). The Court granted in part
and denied in part Defendant Kistner and Defendant Madrigal’s motions to dismiss. The Court
dismissed the federal claims against Defendant Kistner and Defendant Madrigal in their official
capacities as duplicative of the claims against the City (Dkt. #44). The Court denied Defendant
Kistner’s and Defendant Madrigal’s motions to dismiss the state law claims against them in their
official capacities. The Court directed Plaintiff to file a Rule 7(a) Reply addressing why Defendant
Kistner and Defendant Madrigal are not entitled to a qualified immunity defense for the
constitutional claims against them in their individual capacities. Specifically, the Court directed
Plaintiff to explain why his interest in commenting on matters of public concern outweighed
Defendants’ interest in promoting efficiency. The Court would then determine whether Plaintiff
pleaded sufficient facts that (1) the officials violated a statutory or constitutional right and (2) the
right was clearly established at the time of the challenged conduct.
On October 14, 2016, Plaintiff filed a Rule 7(a) Reply (Dkt. #45). On November 26, 2016,
Defendant filed a Motion for Leave to File Defendants’ Response to Plaintiff’s Rule 7 Reply
(Dkt. #46). On January 5, 2017, the Court granted leave to file a response (Dkt. #48). On January
6, 2016, Defendant Kistner and Defendant Madrigal filed Defendants’ Response to Plaintiff’s Rule
7 Reply (Dkt. #49).
To establish § 1983 liability, a plaintiff “must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.” Iqbal, 556
U.S. at 678. Public officials whose positions entail the exercise of discretion may be protected by
the defense of qualified immunity from personal liability. Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). When a defendant asserts the defense of qualified immunity and has established that
the alleged actions were conducted pursuant to the exercise of his discretionary authority, the
burden then shifts to the plaintiff to rebut this defense. McClendon v. City of Columbia, 305 F.3d
314, 323 (5th Cir. 2002).
Courts have historically engaged in a two-pronged analysis to determine whether a
defendant is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201 (2001). First, a
court must determine whether a “constitutional right would have been violated on the facts
alleged.” Flores v. City of Palacios, 381 F.3d 391, 395 (5th Cir. 2004). Second, if a constitutional
right was violated, a court then determines whether “the defendant’s actions violated clearly
established statutory or constitutional rights of which a reasonable person would have known.” Id.
The law may be deemed to be clearly established if a reasonable official would understand that his
conduct violates the asserted right. Anderson v. Creighton, 483 U.S. 635, 640 (1987). The
official’s subjective motivation is irrelevant to the qualified immunity defense except as far as it
is relevant to the underlying constitutional claim. Crawford-El v. Britton, 523 U.S. 574, 588
(1998). A government official’s conduct violates clearly established law when, at the time of the
challenged conduct, “[t]he contours of the right [are] sufficiently clear” such that every
“reasonable official would have understood that what he is doing violates that right.” Creighton,
483 U.S. at 640. The clearly established inquiry does not require a case directly on point, but
existing precedent must have placed the statutory or constitutional question beyond debate. See
id. Malley v. Briggs, 475 U.S. 335, 341 (1986). The Supreme Court recently instructed courts “to
exercise their sound discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand.”
Pearson v. Callahan, 555 U.S. 223, 236–37 (2009).
Whether a Constitutional Right Would Have Been Violated on the Facts Alleged
In the facts alleged in the Amended Complaint and Rule 7(a) Reply, Plaintiff sufficiently
alleged a violation of his First Amendment rights.
In order for a public employee to recover for a free speech retaliation claim, the plaintiff
must satisfy four elements: (1) the plaintiff must suffer an adverse employment decision; (2) the
plaintiff’s speech must involve a matter of public concern; (3) the plaintiff’s interest in
commenting on matters of public concern must outweigh the defendant’s interest in promoting
efficiency; and (4) the plaintiff’s speech must have motivated the defendant’s actions. Burnside
v. Kaelin, 773 F.3d 624, 626 (5th Cir. 2014). A First-Amendment, “association” claim “has similar
elements but requires ‘engagement in a constitutionally protected activity’ (rather than speech) and
omits the second element (i.e., that the protected act involve a matter of public concern)”. Id.
Plaintiff alleges that the City terminated his employment because of his association with
Local 2661. In its October 14, 2016 order, the Court found that Plaintiff pleaded sufficient facts
to satisfy the first two prongs of a First Amendment retaliation claim, i.e., that Plaintiff suffered
an adverse employment decision and that Plaintiff’s speech involved a matter of public concern.
See Dkt. #44 (citing Cox v. Kaelin, 577 F. App'x 306, 311 (5th Cir. 2014) (“there can be no question
that ... associating with political organizations and campaigning for a political candidate[ ] related
to a matter of public concern”)). The Court directed Plaintiff to file a Rule 7(a) Reply addressing
the third prong–whether Plaintiff's interest in commenting on matters of public concern
outweighed Defendant Kistner and Defendant Madrigal’s interest in promoting efficiency.
In Garcetti v. Ceballos, 547 U.S. 410, 418 (2006), the Supreme Court explained that:
When a citizen enters government service, the citizen by necessity must accept
certain limitations on his or her freedom . . . Government employers, like private
employers, need a significant degree of control over their employees’ words and
actions; without it, there would be little chance for the efficient provision of public
services . . . At the same time, the Court has recognized that a citizen who works
for the government is nonetheless a citizen. The First Amendment limits the ability
of a public employer to leverage the employment relationship to restrict,
incidentally or intentionally, the liberties employees enjoy in their capacities as
private citizens . . . So long as employees are speaking as citizens about matters of
public concern, they must face only those speech restrictions that are necessary for
their employers to operate efficiently and effectively. (citations omitted).
In other words, a Court must balance Plaintiff’s interest in making his statement against
“the interest of the State, as an employer, in promoting the efficiency of the public services it
performs through its employees.” Pickering v. Bd. of Ed. of Twp. High Sch. Dist. 205, Will Cty.,
Illinois, 391 U.S. 563, 568 (1968). The employee’s statement is not considered in a vacuum.
Rankin v. McPherson, 483 U.S. 378, 388, (1987). “In performing the balancing . . . the manner,
time, and place of the employee’s expression are relevant, as is the context in which the dispute
arose.” Branton, 272 F.3d at 741 (citing Rankin, 483 U.S. at 388). “The Supreme Court has
recognized as pertinent considerations ‘whether the statement impairs discipline by superiors or
harmony among co-workers, has a detrimental impact on close working relationships for which
personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties
or interferes with the regular operation of the enterprise.’” Id. (citing Victor v. McElveen, 150 F.3d
451, 457 (5th Cir. 1998)). “The indispensable predicate to balancing, however, is evidence from
the public employer of actual or incipient disruption to the provision of public services . . . Without
such evidence, there simply is no countervailing state interest to weigh against the employee’s
First Amendment rights.” Grogan v. Lange, 617 F. App'x 288, 292 (5th Cir. 2015) (citing
Vojvodich v. Lopez, 48 F.3d 879, 887 (5th Cir. 1995)).
In his Amended Complaint and Rule 7(a) Reply, Plaintiff alleges that the Local 2661 photo
shoot involved only off-duty union members, “meaning that no fire-fighting personnel were
otherwise diverted from responses or made unavailable to respond to emergency calls.” Plaintiff
further alleges that union members who participated in the photo shoot were dressed in Local 2661
shirts and wore no City insignia. Plaintiff states that although a City fire truck appeared in the
photo, the truck was not identifiable as City equipment. Plaintiff was not present at the photo
shoot or personally involved in the use of the City fire truck. According to Plaintiff, his actions
did not cause “any disruption in the provision of emergency services, imped[e] the operations of
the department, affec[t] any working relationships or otherwise impai[r] the department’s proper
In response, Defendant Kistner and Defendant Madrigal do not argue that the photo shoot
or Plaintiff’s involvement with Local 2661 caused any disruption to the provision of public
services. Instead, Defendant Kistner and Defendant Madrigal argue that “government employees
have considerable authority to restrict the political activities of their employees.” Defendant
Kistner and Defendant Madrigal point to Phillips v. City of Dallas, 781 F.3d 772, 779
(5th Cir. 2015), in which the Fifth Circuit held that the City of Dallas did not violate a firefighter’s
First Amendment rights by terminating him after he became a candidate for Dallas County
Commissioner in violation of the Dallas City Charter. In Philips, the Fifth Circuit held that “the
government came out ahead” for purposes of Pickering balancing because of its interest in
regulating employee activity. Id. at 779-80. Citing the Supreme Court decision in Civil Service
Commission v. National Association of Letter Carriers, the Fifth Circuit noted that there was “no
constitutional infirmity” in laws precluding state and government employees from a broad range
of political activity, including “raising money for, publicly endorsing, or campaigning for political
candidates.” Id. at 780 (citing Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548,
550–51, (1973)). Defendant Kistner and Defendant Madrigal argue that they did not violate
Plaintiff’s First Amendment rights because Texas law prohibits state employees from using a stateowned or state-leased motor vehicle to support the candidacy of a person for public office. See
Tex. Gov’t Code § 556.004(a-b). Defendant Kistner and Defendant Madrigal state that the City’s
interest in enforcing this law outweighs Plaintiff’s interest in commenting on matters of public
Although Plaintiff organized the photo shoot, Plaintiff did not attend the photo shoot and
was not personally involved in moving the City fire truck. Plaintiff was thus not involved in the
use of a state-owned or state-leased motor vehicle to support the political action committee’s
endorsed candidates. Defendant Kistner and Defendant Madrigal do not otherwise allege how the
City’s needs as an employer justified discharging Plaintiff for organizing the photo shoot.
Defendant Kistner and Defendant Madrigal do not dispute that the photo shoot did not disrupt the
provision of emergency services, impede the operations of the department, affect any working
relationships or otherwise impair the fire department’s proper functioning. Plaintiff has pleaded
sufficient facts that his interest in commenting on matters of public concern outweigh the City’s
interest in promoting efficiency. See Vojvodich v. Lopez, 48 F.3d 879, 886 (5th Cir. 1995)
(“Because the [defendant] has not alleged that [Plaintiff’s] activities actually or potentially affected
the Sheriff's Office’s ability to provide services, there simply is no countervailing state interest to
weigh against the employee's First Amendment rights.”).
Defendant Kistner and Defendant Madrigal do not contest that Plaintiff’s organization of
the photo shoot motivated his termination. Plaintiff has alleged sufficient facts to make it plausible
that Defendant Kistner and Defendant Madrigal violated his First Amendment rights.
Whether Defendants’ Actions Violated Clearly Established Constitutional Rights of Which a
Reasonable Person Would Have Known
Defendant Kistner and Defendant Madrigal argue that their actions did not violate clearly
established law because government employers have authority to restrict the political activities of
their employees and Texas law prohibits the use of a state-owned or state-leased motor vehicle to
support the candidacy of a person for public office. However, as noted above, Plaintiff was not
present at the photo shoot and was not involved in the use of the City fire truck in the photo shoot.
The Fifth Circuit has consistently held that “the law is clearly established that a public employee
may be neither discharged nor demoted in retaliation for exercising his First Amendment Rights.”
Cox v. Kaelin, 577 F. App'x 306, 313 (5th Cir. 2014). See also Vojvodich v. Lopez, 48 F.3d 879,
887 (5th Cir. 1995) (stating that “prior to March 1993, it should have been readily apparent to a
reasonable [employer] that he could not retaliate against [an employee] for exercising his First
Amendment rights unless the [employee’s] activities had in some way disrupted the . . .
department.”); Boddie v. City of Columbus, Miss., 989 F.2d 745, 750 (5th Cir. 1993) (holding that
the fire chief “should reasonably have known that firing [Plaintiff] for his association with union
firemen violated clearly established law.”).
Here, Plaintiff has pleaded sufficient facts that Defendant Kistner and Defendant Madrigal
violated his First Amendment rights. The law is clearly established that Defendant Kistner and
Defendant Madrigal could not discharge Plaintiff for exercising these rights unless Plaintiff’s
activities had in some way disrupted the City fire department.
It is therefore ORDERED that Defendant Kistner’s and Defendant Madrigal’s motions to
dismiss Plaintiff’s claims against them in their individual capacities based on the defense of
qualified immunity (Dkts. #21, #22) are hereby denied. The remainder of Defendant Kistner’s and
Defendant Madrigal’s motions to dismiss were addressed in the Court’s October 4, 2016 order
SIGNED this 10th day of April, 2017.
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE
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