Rose et al v. Upshur County, Texas et al

Filing 52

MEMORANDUM OPINION AND ORDER granting 23 MOTION to Dismiss Count One of Plantiffs' First Amended Complaint filed by Upshur County, Texas, and 32 MOTION for Summary Judgment filed by Terry Carter, Landon Burleson. Signed by Judge Michael H. Schneider on 6/8/12. (mjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JOHN SCOTT ROSE, et al.

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Plaintiffs
vs.
UPSHUR COUNTY, TEXAS, et al.
Defendants

CASE NO. 6:11cv263

MEMORANDUM ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS AND
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
This case involves two separate claims. First, Plaintiff John Rose alleges that his employment
was terminated and his house was searched in retaliation for his opposition to sexual harassment in
the workplace. For that, Plaintiff John Rose seeks relief under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000(e), et seq. Second, Plaintiffs John Rose, his wife, Crystal Rose, and their
four minor children claim that the search of their home by Upshur County Deputies Terry Carter and
Landon Burleson was unreasonable and a violation of their Fourth Amendment rights. For that,
Plaintiffs seek relief under 42 U.S.C. § 1983. Defendants moved to dismiss John Rose’s Title VII
retaliation claim (Doc. No. 23) and moved for summary judgment on the Fourth Amendment § 1983
claim (Doc. No 32). Having considered Defendants’ motions, the arguments of counsel, and the
applicable law, Defendants’ motion to dismiss (Doc. No. 23) and motion for summary judgment
(Doc. No. 32) are GRANTED.
I.

Factual Background

Plaintiffs filed their original complaint in May 2011. Defendants answered and moved for

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judgment on the pleadings. The Court granted Plaintiffs’ motion for leave to amend their complaint
and Defendants moved for partial dismissal of the amended complaint. The record in this case sets
forth the following facts.
In December 2009, Plaintiff John Rose was employed as a jailer with the Upshur County
Sheriff’s Department. That month, Rose learned that two sheriff’s department employees had “made
inappropriate sexual comments and/or suggestive communications with his wife.” The amended
complaint provides some indication that the comments were made on the internet or through e-mail.
But nothing in the pleadings provides further details about these comments and communications or
their content.
Rose complained to the chief deputy about the employees’ comments and communications.
On February 2, 2010, Rose’s wife, Crystal Rose, e-mailed Upshur County Sheriff’s Department
Captain Gary Roberts to complain that a sheriff’s department employee was spreading rumors and
statements about her and her husband.
The next day, Rose called in sick for work. Later that day, Captain Roberts called Rose at his
home to discuss the complaints he and his wife had made. Captain Roberts was unable to reach Rose
by telephone, so he sent Deputy Carter to see if Plaintiff was at home. Carter arrived at the Roses’
home around 8:30 p.m. He observed a car in the driveway with “dealer” license plates, which
prevented Carter from verifying who owned the car. He knocked on the front door for several
minutes, but received no response. Carter left the home, but returned a few minutes before 9:00 p.m.
When he arrived the second time, Carter walked to the front of the home and observed that
the front door was open. Through the open door he saw that the television and many of the lights in
the home were on. He also noticed that the interior of the home appeared to have been ransacked and

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as though someone had been rummaging through it. Carter yelled into the house several times to
announce his presence, but he received no response. At this point, he called for back up.
Deputy Burleson arrived at the Roses’ home a few minutes after 9:00 p.m. The two deputies
entered the home, yelled for John Rose, and searched inside for approximately four-and-a-half
minutes. They did not find anyone inside. As the deputies were exiting the home, Plaintiff Rose and
his family arrived. The next day, Sheriff Anthony Betterton terminated Rose’s employment with the
Upshur County Sheriff’s Department.
II.

Motion to Dismiss Plaintiff John Rose’s Title VII Retaliation Claim
a.

Legal Standard

Defendants filed a motion to dismiss John Rose’s claim for unlawful retaliation. Motions
to dismiss for failure to state a claim are “viewed with disfavor, and are rarely granted.” Lormand
v. US Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009) (internal quotation omitted). The Court
utilizes a “two-pronged approach” in considering a motion to dismiss. Ashcroft v. Iqbal, 129 S.Ct.
1937, 1950 (2009). First, the Court identifies and excludes legal conclusions that “are not entitled
to the assumption of truth.” Id. Second, the Court considers the remaining “well-pleaded factual
allegations.” Id. The Court must accept as true all facts alleged in Plaintiffs’ complaint, and the Court
views the facts in the light most favorable to Plaintiffs. In re Katrina Canal Breaches Litig., 495
F.3d 191, 205 (5th Cir. 2007). Plaintiffs’ complaint survives Defendants’ 12(b)(6) motion to dismiss
if it includes facts sufficient “to raise a right to relief above the speculative level.” Id. (quotations and
citations omitted). In other words, the Court must consider whether Plaintiffs have pleaded “enough
facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007).

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b.

Timeliness of Motion to Dismiss

Plaintiff John Rose1 argues that Defendants’ motion to dismiss is not timely filed because
it was not filed before Defendants’ original answer. Plaintiff’s argument lacks merit. In response to
Plaintiff’s complaint, Defendants filed a motion for judgment on the pleadings. Plaintiff then moved
for leave to file an amended complaint. The Court granted leave and at the same time denied
Defendants’ motion for judgment on the pleadings without prejudice. In response to Plaintiff’s
amended complaint, Defendants filed an answer and a motion to dismiss. Defendants are correct that
the motion for judgment on the pleadings was denied because Plaintiff had amended his complaint.
Defendants were entitled to file a responsive pleading to Plaintiff’s amended complaint.
c.

Title VII Retaliation

The Court granted Plaintiffs leave to amend their original complaint. In response, Defendants
have moved to dismiss Plaintiff John Rose’s amended complaint for Title VII retaliation. Plaintiff
Rose did not move for additional leave to amend his complaint.
Plaintiff Rose claims that he was retaliated against because of his opposition to sexual
harassment in the workplace and participation in protected activity. “Title VII prohibits retaliation
. . . against individuals who oppose discriminatory employment practices or participate in complaints
or investigations of employment practices prohibited by [T]itle VII.” Lowrey v. Tex. A & M Univ.
Sys., 117 F.3d 242, 249 (5th Cir. 1997) (citing 42 U.S.C. § 2000e–3(a)).
To establish a prima facie case of retaliation, a plaintiff must show that: (1) he participated
in an activity protected by Title VII; (2) his employer took adverse employment action against him;
and (3) a causal connection exists between the protected activity and the materially adverse action.
1

Because only John Rose asserts a Title VII claim, references in this Order to Plaintiff
refer to John Rose only. References to Plaintiffs refer to John Rose, his wife, and their children.
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See Aryain v. Wal-Mart Stores Tex. LP, 534 F.3d 473, 484 (5th Cir. 2008).
To satisfy the first element of the prima facie case, an employee must show that he has either
(1) “opposed any practice made an unlawful employment practice” by Title VII (the opposition
clause); or (2) “made a charge, testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing” under Title VII (the participation clause). 42 U.S.C. § 2000e-3(a). Plaintiff’s
complaint does not allege sufficient facts to support a cause of action under either theory.
i.

The Opposition Clause

A plaintiff satisfies the opposition clause if he “opposed any practice made an unlawful
employment practice” under Title VII. 42 U.S.C. § 2000e-3(a). If a plaintiff opposes an employment
practice that is not actually prohibited by Title VII, the plaintiff may still be able to satisfy the
opposition clause if he demonstrates that he had at least a good faith, reasonable belief that the
practices he opposed were unlawful. See Wilson v. UT Health Ctr., 973 F.2d 1263, 1267 (5th Cir.
1992); Payne v. McLemore’s Wholesale & Retail Stores, 654 F.2d 1130, 1140 (5th Cir. 1981).
In this case, Plaintiff claims that he was terminated from his employment at the Upshur
County Sheriff’s Office because he opposed sexual harassment. The alleged sexual harassment
occurred when two sheriff’s department employees “made inappropriate sexual comments and/or
suggestive communications with [Rose’s] wife.” Doc. No. 19 at 3.2 Plaintiff claims that these
comments and communications constituted sexual harassment against him, and that his employment
was terminated because he complained about this sexual harassment.
2

The complaint also alleges that an employee “spread rumors and/or statements in the
workplace” about Plaintiff and Plaintiff’s wife. But according to the allegations in the complaint,
it was Plaintiff’s wife, not Plaintiff, who complained about these alleged rumors and statements.
Moreover, there is no allegation that these rumors or statements were sexual in nature. To the
extent these were alleged to be different comments than the communications already mentioned,
the Court will not consider them.
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In their motion to dismiss, Defendants argue that Rose fails to allege that he engaged in
protected activity because Rose has not alleged the existence of an unlawful employment practice.
Assuming the allegations in the complaint to be true, and drawing all reasonable inferences
in the light most favorable to Plaintiff, the Court finds that Plaintiff’s allegations do not support a
claim for retaliation under the opposition clause because Plaintiff has not alleged that he opposed
an unlawful employment practice. Plaintiff alleges that two Upshur County employees made
inappropriate sexual comments or suggestive communications with Plaintiff’s wife and that he
complained to the chief deputy about the comments and communications. Plaintiff has not pleaded
facts that show that he or another employee were subjected to unwelcome sexual harassment. See
Earle v. Aramark Corp., 247 F. App’x 519, 524-25 (5th Cir. 2007) (stating that a prima facie case
of sexual harassment requires a plaintiff to show “[he] was subjected to unwelcome sexual
harassment”). The facts alleged hint that Rose’s wife was subjected to unwelcome sexual
communications. But this is not an unlawful employment practice under Title VII. Moreover, the
allegations of harassment are vague. Except to say that the comments directed at his wife were
“inappropriate,” “sexual,” and “suggestive,” Plaintiff’s amended complaint leaves the Court guessing
about important details such as the content of the comments and communications. These allegations
are insufficient to support Plaintiff’s claim that he was retaliated against for opposing an unlawful
employment practice.
Alternatively, Plaintiff argues that he satisfied the opposition clause because he had a good
faith, reasonable belief that the employment practices he opposed were unlawful. Plaintiff supports
this argument by simply stating that he “had a reasonable and good faith belief the practices were
unlawful.” Doc. No. 28 at 6. This statement is conclusory. Plaintiff does not articulate the reason

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underlying his good faith belief. Accordingly, Plaintiff has not pleaded enough facts for this Court
to determine that his claim of a good faith belief is plausible on its face. See Twombly, 550 U.S. at
570.
ii.

The Participation Clause

The remaining avenue for Plaintiff’s retaliation claim is the participation clause. Plaintiff’s
complaint alleges that he was retaliated against for participating in protected activity. Defendants
contend that Plaintiff has not properly pleaded a cause of action under the participation clause for
two reasons. First, Defendants argue that Plaintiff has merely recited an element of a cause of action
and supported it with a conclusory statement. Second, Defendants argue that Plaintiff has not alleged
that he participated in any activity that is relevant to a claim under the participation clause.
Specifically, Defendants argue that Plaintiff cannot rely on his Equal Employment Opportunity
Commission (EEOC) charge to satisfy the participation clause because he filed that charge after he
was terminated from the Upshur County Sheriff’s Department. Because he was not employed by
Defendants at the time he filed his EEOC charge, the charge does not satisfy the participation clause.
See e.g., Byers v. Dallas Morning News, Inc., 209 F.3d 419, 428 (5th Cir. 2000) (“In the instant case,
the ‘participation clause’ is irrelevant because [plaintiff] did not file a charge with the EEOC until
after the alleged retaliatory discharge took place.”).
The Court agrees with Defendants that Plaintiff has not properly pleaded a cause of action
under the participation clause. Plaintiff’s claim under the participation clause is based entirely on an
unsubstantiated conclusion that he was retaliated against because he participated in protected
activity. There are no facts indicating that he made a relevant EEOC charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under Title VII. Accordingly,

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Plaintiff’s complaint does not contain enough facts to state a claim to relief under the participation
clause that is plausible on its face. See Twombly, 550 U.S. at 570.
For the foregoing reasons, Defendants’ motion to dismiss Plaintiff John Rose’s claim for
retaliation (Doc. No. 23) is GRANTED.
III.

Motion for Summary Judgment of Plaintiffs’ Fourth Amendment Claim
a.

Legal Standard

Defendants move for summary judgment on the Fourth Amendment § 1983 claim brought
by John Rose, Crystal Rose, and their four minor children. The Court should grant a motion for
summary judgment if no genuine issue as to any material fact exists and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 323–25
(1986); Norwegian Bulk Transp. A/S v. Int’l Marine Terminals P’ship, 520 F.3d 409, 411 (5th Cir.
2008). A fact is material if it might affect the outcome of the suit under the governing law. Sossamon
v. Lone Star State of Tex., 560 F.3d 316, 326 (5th Cir. 2009). Issues of material fact are “genuine”
only if they require resolution by a trier of fact and if the evidence is such that a reasonable jury
could return a verdict in favor of the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Sossamon, 560 F.3d at 326. When ruling on a motion for summary judgment, the
Court must view all inferences drawn from the factual record in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986); Sossamon,
560 F.3d at 326.
Under Rule 56, the party moving for summary judgment must “demonstrate the absence of
a genuine issue of material fact.” Duffie v. United States, 600 F.3d 362, 371 (5th Cir. 2010) (internal
quotation omitted). If the moving party fails to meet this initial burden, the motion must be denied

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regardless of the nonmovant’s response. Id. (internal quotation omitted). If the movant meets the
burden, however, Rule 56 requires the opposing party to go beyond the pleadings and show by
affidavits, depositions, answers to interrogatories, admissions on file, or other admissible evidence
that specific facts exist over which there is a genuine issue for trial. Anderson, 477 U.S. at 256; U.S.
ex rel. Farmer v. City of Hous., 523 F.3d 333, 337 (5th Cir. 2008); EEOC v. Tex. Instruments, Inc.,
100 F.3d 1173, 1180 (5th Cir. 1996). The nonmovant’s burden may not be satisfied by argument,
conclusory allegations, unsubstantiated assertions, metaphysical doubt as to the facts, or a mere
scintilla of evidence. Matsushita, 475 U.S. at 586–87; U.S. ex rel. Farmer, 523 F.3d at 337; Duffie,
600 F.3d at 371.
b.

Discussion

The material facts related to Defendant deputies Carter and Deputy Burleson’s search of the
Roses’ home are not in dispute.3 Plaintiffs contend that Defendants violated their Fourth Amendment
right to be free of unreasonable searches when Defendants entered their home without a warrant.
Defendants argue that they are entitled to qualified immunity on the Fourth Amendment claim.
Under the facts of this case, the Court finds that Deputies Carter and Burleson are entitled to
qualified immunity because it was not clearly established that entering the Roses’ home under the
circumstances was objectively unreasonable and therefore a Fourth Amendment violation.
“The doctrine of qualified immunity protects government officials ‘from liability from civil
damages insofar as their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The qualified immunity inquiry has two
3

All references to Defendants in this section refer to Deputies Carter and Burleson,
unless otherwise noted.
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prongs: (1) whether an official’s conduct violated a constitutional right of the plaintiff; and (2)
whether that right was clearly established at the time of the violation. See Brown v. Callahan, 623
F.3d 249, 253 (5th Cir. 2010). The Court may begin its analysis by considering either prong. See
Pearson, 555 U.S. at 236.
Whether a legal rule is clearly established depends substantially upon the level of generality
at which the rule is identified. See Anderson v. Creighton, 483 U.S. 635, 639 (1987). The right a
government official is alleged to have violated must have been “clearly established” in a
particularized and relevant sense. Id. at 640. This means that “[t]he contours of the right must be
sufficiently clear that a reasonable official would understand that what he is doing violates that
right.” Id. In other words, in view of pre-existing law, the unlawfulness of an official action must
be apparent. Id. (citations omitted).
Searches and seizures inside a home without a warrant are presumptively unreasonable. See
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). But this presumption may be overcome in
some circumstances because “[t]he ultimate touchstone of the Fourth Amendment is
‘reasonableness.’” Id. at 403. The exigencies of a particular situation may “make the needs of law
enforcement so compelling that [a] warrantless search is objectively reasonable under the Fourth
Amendment.” Mincey v. Arizona, 437 U.S. 385, 394 (1978).
“[W]here the complained of conduct is a law enforcement warrantless search of a residence,
qualified immunity turns not only on whether it was then clearly established that such a search
required probable cause and exigent circumstances, but also on whether it was then ‘clearly
established that the circumstances with which’ the officer ‘was confronted did not constitute
probable cause and exigent circumstances.’” Pierce v. Smith, 117 F.3d 866, 871 (5th Cir. 1997)

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(quoting Anderson v. Creighton, 483 U.S. 635, 640-41 (1987).
To prevail on their claim under the Fourth Amendment, Plaintiffs must overcome
Defendants’ qualified immunity defense. The burden is on Plaintiffs to rebut the officers’ qualified
immunity defense “by establishing a genuine fact issue as to whether the [officers’] allegedly
wrongful conduct violated clearly established law.” Brown, 623 F.3d at 253.
The relevant question in this case is whether a reasonable officer could have believed
Defendants’ warrantless search to be lawful, in light of clearly established law and the information
the searching officers possessed. See Anderson, 483 U.S. at 641. The Court is presented with the
following facts: John Rose called in sick for work on February 3, 2010. At approximately 8:30 p.m.
that night, Deputy Carter arrived at the Roses’ home. He observed a car in the driveway but could
not identify its owner. He observed lights and a television on in the home. The front door was open
and the interior of the home appeared “ransacked,” “destroyed,” and as though someone had been
rummaging around inside. Carter yelled into the house several times to announce his presence, but
received no response. He called for back up. Deputy Burleson arrived about ten minutes later and
the two deputies searched the home for less than five minutes.
Plaintiffs argue that Defendants are not entitled to qualified immunity under these facts.
They rely on United States v. Troop, 514 F.3d 405 (5th Cir. 2008). In Troop, border patrol agents
suspected that illegal aliens may have been inside a house. Troop, 514 F.3d at 408. The agents
knocked and announced their presence at the house, but received no response. Id. Through a
window, the agents could see two men lying on a bed. Id. The agents called to these men, but
received no response. Id. One agent reached through an open window and shook one of the men, but
still received no response. Id. Believing that there may have been a medical emergency, the agents

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entered the home and found evidence of a crime, which was later used to convict Troop. Id. The
Fifth Circuit held that these facts did not constitute exigent circumstances because there was “no
evidence of medical distress requiring immediate aid, such as loss of blood, signs of physical illness,
or evidence that an individual had to be carried or dragged.” Id. at 410. The Court found that the
failure of anyone to respond to the agents’ knocking was insufficient to create exigent circumstances.
Id.
Plaintiffs argue that Troop is directly relevant to this case. But Troop was a criminal case,
and the question before the Fifth Circuit was whether certain incriminating evidence should be
suppressed because it was obtained during a warrantless search. Id. at 407. Troop did not address
whether the border patrol agents who conducted the search should be stripped of qualified immunity
and subjected to civil liability for their actions. Moreover, the circumstances of the search in Troop
are sufficiently distinct from the circumstances in the present case that they could not have put
Deputies Carter and Burleson on notice that searching the Roses’ home was a violation of
constitutional law. Like the agents in Troop, Carter and Burleson received no response when they
announced their presence at the home. In Troop and this case, the officers were able to see inside
the homes before entering them. In Troop, the officers observed men sleeping on a bed, but they did
not present evidence of distress that might have justified their warrantless entry. Id. at 410. In this
case the door was open, interior lights and the TV were on, and the interior of the home appeared
to be destroyed. In addition, there was a car in the driveway giving rise to a reasonable belief that
someone was home. Finally, Deputies Carter and Burleson knew that Plaintiff Rose had been too
sick to work that day. On these facts, Defendants argue that they had reason to believe that some sort
of struggle, distress, or violence had recently occurred in the home. They also argue that Plaintiff

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Rose’s failure to respond to their calls, the disarray of the home, and the fact that Rose had called
in sick for work created a real concern that he was seriously ill or endangered.
Based on the circumstances confronting Deputies Carter and Burleson, the Court cannot say
that it was objectively unreasonable for them to enter the Roses’ home. Plaintiffs have not shown
that Defendants’ conduct was objectively unreasonable in light of clearly established law at the time
of the incident.
Moreover, even if Defendants were incorrect in concluding that exigent circumstances
existed, they were not objectively unreasonable in believing that there were exigent circumstances.
Consequently, they are entitled to qualified immunity. See Anderson, 483 U.S. at 641 (stating that
law enforcement agents who reasonably but mistakenly conclude that exigent circumstances are
present should not be held personally liable for their actions). Defendants had knowledge of several
facts giving rise to a legitimate concern for the safety of Plaintiff Rose. There was no clearly
.
established law that placed Defendants on notice that their actions were unlawful under the
circumstances.
As a result, Defendants are entitled to qualified immunity and Defendants’ motion for
summary judgment (Doc. No. 32) is GRANTED.
It is SO ORDERED.
SIGNED this 8th day of June, 2012.

____________________________________
MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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