Lumpkin et al v. Aransas County, Texas

Filing 42

ORDER denying 39 Motion for Reconsideration.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(lcayce, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
GWYNN LUMPKIN, et al,
Plaintiffs,
VS.
ARANSAS COUNTY, TEXAS,
Defendant.

January 03, 2017
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:15-CV-190
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ORDER DENYING MOTION FOR RECONSIDERATION
On August 30, 2016, this Court granted Defendant’s motion for summary
judgment and entered final judgment dismissing this action. D.E. 37, 38. On September
1, 2016, Plaintiffs filed their “Motion to Reconsider and/or Motion for New Trial” (D.E.
39). Defendant filed its response (D.E. 41). A timely-filed motion to reconsider is
treated as a motion to alter or amend under Federal Rule of Civil Procedure 59(e), the
new trial rule. For the reasons set out below, the motion is DENIED.
Plaintiffs state four objections to the judgment: (1) the Court should have treated
the speech as protected under the First Amendment because a public purpose is not
required; (2) the Court’s reliance on Kristen Barnebey’s deposition testimony is
misplaced because it recites hearsay, involves statements by witnesses Plaintiffs did not
have an opportunity to depose, and is impeached by her own testimony as well as Leslie
Krenek’s testimony in the unemployment benefits hearing; (3) the Court misunderstood
the factual significance of Plaintiffs’ texts as they applied to Richard Bianchi’s court
preparation; and (4) Plaintiffs adequately identified protected deposition testimony,
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which was used for a retaliatory discharge because it did not support the County’s
defense of the Bauer lawsuit. The objections will be addressed in turn.
Public purpose. Plaintiffs complain that the Court is not permitted to require that
the speech be directed to someone for purposes of public action before finding it subject
to First Amendment protection. This argument is misplaced for two reasons. First, the
Court did not treat that issue as dispositive. It applied a thorough content, form, and
context review of the speech. All of these issues contribute to the analysis of the actual
dispositive issue: whether the speech was citizen speech as a matter of public concern
rather than employee speech directed only to issues of the workplace. See Connick v.
Myers, 451 U.S. 138, 147-48 (1983). Plaintiffs’ lack of interest in public action as a
result of their speech is one consideration, which the Court did not treat as dispositive.
Second, the Court expressly allowed that, even if their speech were protected,
Plaintiffs’ retaliatory termination claims did not survive the Pickering test. Order, D.E.
37 at 16 (citing Pickering v. Board of Ed. Of Township High School Dist. 205, 391 U.S.
563, 568 (1968)).

Plaintiffs have not challenged the Court’s determination of the

Pickering balancing test, which permits a public agency to terminate employment after
the utterance of protected speech if the agency’s interest in regulating its workplace
outweighs the individual’s constitutional interest in the speech.
demonstrated that their complaint requires a different outcome.

They have not
The Court rejects

Plaintiffs’ first objection.
Barnebey’s Deposition Testimony.

Plaintiffs complain of the Court’s

consideration of Barnebey’s deposition testimony because it was given too much weight,
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involved hearsay, included statements from witnesses Plaintiffs did not have an
opportunity to depose, and because it was impeachable. None of these issues merit
reconsideration. In fact, Plaintiffs attached the Barnebey deposition in its entirety to their
initial response, adopting and incorporating it by reference. D.E. 23, p. 7; D.E. 23-4.
First, the Court considered this matter—of others telling Barnebey that Plaintiffs
were a negative influence on the office—along with other issues the Court deemed more
concerning regarding the workplace attitude expressed by Plaintiffs, themselves, in their
texts. The Court’s decision is not dependent upon the specific complaints made by the
Justices of the Peace or Amilynn Daniels or even Barnebey’s consideration of that issue
in isolation. Neither is the decision necessarily dependent upon the issue of whether
Plaintiffs were forthcoming with their texts during the Bauer litigation. Barnebey’s
testimony on these issues is simply corroborative of what is revealed in the texts,
themselves, and thus no harm can flow from its consideration.
The deposition testimony regarding other people complaining about Plaintiffs’
negativity is not inadmissible hearsay. The matter was not considered for the truth of
what those people said, but for Barnebey’s thought process as to Plaintiffs’ role in the
County Attorney’s office—their reaction when Barnebey confronted them with the
outside opinions. Thus it does not fit the definition of hearsay under Federal Rule of
Evidence 801. Plaintiffs’ hearsay objection is OVERRULED.
Plaintiffs’ complaint that they needed an opportunity to depose the Justices of the
Peace and Amilynn Daniels comes too late. They did not make a request for relief under
Federal Rule of Civil Procedure 56(d), which provides for any appropriate order
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necessary to permit a non-movant to obtain the factual information required to oppose the
motion. Neither did they seek an order compelling discovery.
They were fully aware of the specific testimony they now complain about—
Barnebey’s testimony regarding what the other people had told her, how she had
confronted Plaintiffs with that information, and her thought process resulting from
Plaintiffs’ reaction. If Plaintiffs wanted to controvert the nature of the other persons’
opinions or Plaintiffs’ reaction, they could have timely requested the opportunity to
depose others or offered their own affidavit testimony to controvert Barnebey’s account
of the confrontation.
Instead, Plaintiffs sought the exclusion of Barnebey’s testimony on the basis that
the people she spoke with had not been identified as witnesses. They also sought costs
and attorneys fees as a discovery sanction. But Barnebey was disclosed as a witness.
They did have an opportunity to depose Barnebey. And the Court has not considered any
testimony from the Justices of the Peace or Amilynn Daniels and the truth of Barnebey’s
representations as to what those people specifically said is not at issue. Thus there is
nothing to exclude for failure to identify witnesses. Any objection on that basis is
OVERRULED. Plaintiffs have failed to demonstrate why the Court should prohibit
Barnebey’s deposition testimony when it was attached in full and incorporated into their
own response. Any objection to its consideration is OVERRULED.
Plaintiffs offer additional evidence intended to impeach Barnebey’s deposition
testimony. They claim that she testified differently in an unemployment hearing and they
attach a copy of excerpts from that transcript. Plaintiffs represent that the unemployment
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hearing took place on April 15, 2015, and that Plaintiff Leslie Krenek appeared at the
hearing. D.E. 39, pp. 8-10. The summary judgment motion was filed nearly a year later,
on April 1, 2016, and Plaintiffs’ response was due April 22, 2016. While Plaintiffs state
that they intended to use the unemployment hearing for impeachment or rebuttal purposes
at trial, they have not explained why they did not seek or obtain the transcript in time to
use it in their summary judgment response. See D.E. 39, p. 8, n.3. A new trial is not
warranted where the movant fails to explain why new evidence could not have been
discovered with due diligence prior to the decision. Ferraro v. Lib. Mut. Fire Ins. Co.,
796 F.3d 529, 535 (5th Cir. 2015) (affirming denial of motion to reconsider summary
judgment).
Bianchi’s Court Appearances. Plaintiffs challenge the Court’s reading of their
texts. They argue that Deborah Bauer was the only prosecutor trying cases in the office.
Thus, Plaintiffs could not have been sabotaging Richard Bianchi’s court appearances.
There is nothing in the summary judgment evidence to state that Bianchi, as the County
Attorney, was not making court appearances. This argument also directly contradicts
references in the texts that indicate that Plaintiffs wanted to let the court see how
unprepared Bianchi was. Additionally, Plaintiffs’ own motion explains why and how
Bianchi began making court appearances—within the time frame of Plaintiffs’ texts.
Thus the Court stands by its reading of Plaintiffs’ texts.
In connection with this challenge, Plaintiffs state that they “take issue with the
Court’s characterization of other text messages” and “asks [sic] the Court to reconsider
the plaintiffs’ second supplemental response. (D.E. 34).” D.E. 39, p. 15. Without a
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specific complaint, the Court declines to undertake a reconsideration in the course of
determining whether Plaintiffs are entitled to a reconsideration. Plaintiffs must identify
the grounds for the relief they seek with sufficient specificity to allow an appropriate
response and direct the Court’s consideration. Fed. R. Civ. P. 59(d) (requiring notice and
opportunity to respond, even where court intends to grant a new trial for a reason not
otherwise stated in the motion). The global request for the Court to reconsider their
response to the summary judgment motion is improper. This issue is rejected.
Protecting Plaintiffs’ Deposition Testimony. Last, Plaintiffs contend that their
terminations were retaliatory because their consistent, truthful deposition testimony was
not favorable to their employer, Defendant County. In this regard, they point only to
testimony that they worked well and cooperatively with Deborah Bauer. Plaintiffs do not
attempt to explain their contrary written representations to Aransas County Judge, Burt
Mills, in letters of February 20, 2014, written well before their respective depositions.
D.E. 22-2, pp. 125-26 (Krenek’s letter); D.E. 22-4, pp. 58-60 (Lumpkin’s letter). In their
letters, they describe working with Deborah Bauer in completely different terms,
recalling bitter arguments, nit-picking, silent treatment, overbearing criticism, and an
overall severe and pervasive, hostile working environment that they could not endure if
Bauer were permitted to return to work.
Plaintiffs’ testimony in their depositions that they claim cost them their jobs was
directly contrary to representations made in their letters, upon which the County had
relied in its defense against the Bauer lawsuit.

It does not matter which account

(deposition or letter) is the truth. What matters is that they could not have been more
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contradictory, placing Plaintiffs’ honesty in question.

Plaintiffs cannot take their

deposition testimony in isolation and claim a retaliatory discharge when there are written
representations contrary to that deposition testimony.
CONCLUSION
For these reasons, Plaintiffs’ motion to reconsider (D.E. 39) is DENIED in its
entirety.
ORDERED this 3rd day of January, 2017.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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