Valadez v. City of Corpus Christi

Filing 32

ORDER DISMISSING ACTION granting 26 Motion for Summary Judgment.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
DIONICIO VALADEZ,
Plaintiff,
VS.
CITY OF CORPUS CHRISTI,
Defendant.

February 21, 2017
David J. Bradley, Clerk

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§ CIVIL ACTION NO. 2:16-CV-164
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§
§

ORDER DISMISSING ACTION
Plaintiff, Dionicio Valadez (Valadez) sued Defendant City of Corpus Christi (the
City) under 42 U.S.C. § 1983, alleging retaliation for the exercise of his First Amendment
right to freedom of speech in connection with his suspension without pay after he
complained of workplace safety violations. D.E. 11. Before the Court is the City’s
motion for summary judgment (D.E. 26), asserting three grounds for dismissal: (1)
Plaintiff’s speech was not protected by the First Amendment because it was uttered in
connection with his responsibilities as employee rather than as a citizen; (2) Plaintiff’s
speech was not protected by the First Amendment because it did not involve a matter of
public concern; and (3) Plaintiff has not demonstrated liability against the City pursuant
to Monell1 because there is no evidence of a final policymaker or a widespread policy to
infringe on employees’ freedom of speech.
Valadez has responded (D.E. 29), objecting to the City’s affidavit evidence,
contending that the Civil Service Review Board is a final policymaker that failed to

1

Monell v. New York City Dep’t of Social Servs., 436 U.S. 658, 691 (1978).

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protect employees’ freedom of speech as a matter of City policy, and arguing that his
speech was protected as uttered for the benefit of the community at large and not just for
workplace safety. The City filed a reply containing additional evidence (D.E. 31), which
the Court disregards. For the reasons set out below, the Court SUSTAINS Valadez’s
objections to the City’s evidence and GRANTS the motion to dismiss.
STANDARD OF REVIEW
Summary judgment is proper if there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). A
genuine issue exists “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must examine “whether the evidence presents a sufficient disagreement to
require submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law.” Id. at 251–52.
In making this determination, the court must consider the record as a whole by
reviewing all pleadings, depositions, affidavits, and admissions on file, and drawing all
justifiable inferences in favor of the party opposing the motion. Caboni v. Gen. Motors
Corp., 278 F.3d 448, 451 (5th Cir. 2002).

In this respect, uncontroverted factual

allegations in a non-movant plaintiff’s pleading may be taken as true. Am. Mfrs. v.
Colbert, 48 F.3d 530 (5th Cir. 1995).
The court may not weigh the evidence, or evaluate the credibility of witnesses. Id.
Furthermore, “affidavits shall be made on personal knowledge, shall set forth such facts
as would be admissible in evidence, and shall show affirmatively that the affiant is
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competent to testify to the matters stated therein.” Fed.R.Civ.P. 56(e); see also Cormier
v. Pennzoil Exploration & Prod. Co., 969 F.2d 1559, 1561 (5th Cir. 1992) (per curiam)
(refusing to consider affidavits that relied on hearsay statements); Martin v. John W.
Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987) (per curiam) (stating that
courts cannot consider hearsay evidence in affidavits and depositions).
The moving party bears the initial burden of showing the absence of a genuine
issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving
party demonstrates an absence of evidence supporting the nonmoving party's case, then
the burden shifts to the nonmoving party to come forward with specific facts showing
that a genuine issue for trial does exist. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587 (1986). To sustain this burden, the nonmoving party cannot
rest on the mere allegations of the pleadings. Fed. R. Civ. P. 56(e); Anderson, 477 U.S.
at 248. “After the nonmovant has been given an opportunity to raise a genuine factual
issue, if no reasonable juror could find for the nonmovant, summary judgment will be
granted.” Caboni, 278 F.3d at 451.
DISCUSSION
A. Objections to the City’s Evidence
Sherri Eldridge, Human Resources Analyst for the City, submitted her affidavit
(D.E. 26-1), attesting to the job description of a Senior Equipment Mechanic in the
General Services Department—the position Valadez has held at all times material to this
case. Valadez has not objected to the job description as attached to Eldridge’s affidavit

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and it is admissible under the hearsay exception for business records. Fed. R. Evid.
803(6). In fact, rather than object to it, Valadez asks that it speak for itself.
However, Eldridge further states that the terms of the job description mean that
Valadez was responsible for ensuring the safe operation of equipment in connection with
workplace safety, including making reports of observations to his supervisors. Valadez
objects to Eldridge’s interpretive testimony on the basis that it is mere allegation, is
conclusory, states legal conclusions, is speculative, constitutes hearsay, and is a matter
about which Eldridge is not competent to testify.
The Court observes that the job description includes the requirement that one in
Valadez’s position “Ensure proper care in the use and maintenance of equipment and
supplies.

Promote continuous improvement of workplace safety and environmental

practices.” D.E. 26-1, p. 5. Finding that the job description speaks for itself and the
interpretive testimony is superfluous, the Court SUSTAINS Valadez’s objections and
STRIKES Eldridge’s testimony in her affidavit that purports to explain the meaning of
the job description.
As a separate matter, Eldridge includes in her affidavit an investigation report
generated with respect to Valadez’s hostile work environment claim. This investigation
report is not necessary to the determination of the motion before the Court. It further
contains matters that are hearsay and not admissible as a business record. Valadez’s
objections to the investigation report and any testimony regarding that report are
SUSTAINED and paragraph 7 of Eldridge’s affidavit, along with the investigation report
labeled “Attachment 2” are STRICKEN from the record.
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B. Valadez’s Speech is Not Protected by the First Amendment
An action under § 1983 for retaliation against a public employee based upon that
employee’s exercise of the First Amendment right to free speech requires proof of the
following elements:
First, the Plaintiffs must suffer an adverse employment
decision. Second, the Plaintiffs' speech must involve a matter
of public concern [with the Garcetti2 threshold question
resolved in favor of citizen speech over employee speech].
Third, the Plaintiffs' interest in commenting on matters of
public concern must outweigh the Defendants' interest in
promoting efficiency [the Pickering3 balancing test]. Fourth,
the Plaintiffs' speech must have motivated the Defendants'
action.
Harris v. Victoria Independent School District, 168 F.3d 216, 220 (5th Cir. 1999)
(citations omitted). At issue in the City’s motion is only the second element.
“Whether an employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement, as revealed by the
whole record.” Connick v. Myers, 461 U.S. 138, 147-48 (1983). This is a question of
law for the Court. Id. at 148 n.7.

When considering the form and context of the

statement, even matters that can be construed as being of public concern can be, in
context, confined to the realm of employee speech, depending on the role the speaker
occupied when speaking. Id. at 147. See also Williams v. Dallas Indep. Sch. Dist., 480
F.3d 689, 692 (5th Cir. 2007). This citizen-versus-employee determination is described
as a threshold layer of decision and it presents a question of law for the Court. Garcetti,
2

Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).

3

Pickering v. Board of Ed. Of Township High School Dist. 205, 391 U.S. 563, 568 (1968).

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supra at 418; Graziosi v. City of Greenville, 775 F.3d 731, 736 (5th Cir. 2015); Williams,
supra.
Valadez was employed as a Senior Equipment Mechanic for the City. According
to his first amended complaint, in the course of his work he observed violations of
workplace safety rules, which he was instructed to ignore in the interest of production
expedience and cost savings. Instead, he reported the unsafe use and operation of a
forklift to his supervisor. The employee had taken impairing medication and he used the
forklift to raise large equipment for which the forklift was not suited and did so without
appropriate safeguards. When Valadez’s supervisor allowed unsafe practices to continue,
Valadez reported it to his Operations Manager. When that did not achieve any results, he
made his report to the Director of General Services. The Director instructed Valadez to
show the video of safety violations Valadez had created to Human Resources, which
Valadez did.
In his affidavit, Valadez attests that none of his job duties required him to have
concern for proper care in the use and maintenance of equipment or the supervision or
contribution to the improvement of workplace safety and environmental practices.
Rather, his only interest and motivation in reporting the violations he observed was to
protect the public.
My reports addressed potential dangers to employees and the
public at large since their work involved repair and
maintenance on equipment that is used for public commerce
at large. This exposed unsuspecting citizens to harm from
potential malfunctioning or improperly repaired or
maintained equipment. . . . My motivation in making the
reports was not for my betterment but a concern for the
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quality of service provided to the public dependent on City
employee use of reliable equipment, such as a patrol car, in
the performance of their duties.
D.E. 29-1, p. 2.
As set out above, whether Valadez spoke as a citizen or as an employee is a
question of law. Valadez’s self-serving conclusions invade the province of the Court and
do not constitute evidence capable of defeating summary judgment.

See generally,

Galindo v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985); Stagliano v.
Cincinnati Ins. Co., 633 F. App'x 217, 221 (5th Cir. 2015); Gibson v. Liberty Mut. Grp.,
129 F. App'x 94, 95 (5th Cir. 2005). Consequently, the Court STRIKES paragraphs 4
and 5 (the last two paragraphs) of Valadez’s affidavit (D.E. 29-1).
The Court also examines Valadez’s testimony in the first three paragraphs of his
affidavit in which he states that his official job duties as a Senior Equipment Mechanic do
not include anything related to the safe use and operation of equipment. Despite his
testimony, “Activities undertaken in the course of performing one's job are activities
pursuant to official duties.” Williams, 480 F.3d at 693 (citing Garcetti, supra). So his
denials do not settle the question. Furthermore, Valadez’s denials, even if believed, do
not raise a disputed issue of material fact to defeat summary judgment because the job
description is only one factor to be considered.
The legal question for the Court is whether Valadez spoke as an employee. Cases
have shown that at least four non-exhaustive factors, none of which is dispositive, inform
that decision: (1) the job description; (2) whether he learned of the matter on which he
spoke in the course of his employment; (3) whether he identified as an employee in
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making his report; and (4) whether his report was submitted up the chain of his
command. See generally, Johnson v. Hurtt, 893 F. Supp. 2d 817, 829 (S.D. Tex. 2012)
(citing Williams, 480 F.3d at 692; Davis v. McKinney, 518 F.3d 304, 313 (5th Cir.2008);
and Charles v. Grief, 522 F.3d 508, 513 (5th Cir.2008)). Even setting aside what his job
description stated, the other three factors are convincing.
Valadez has based his action on the undisputed allegation that he observed the
misuse of the forklift and other safety violations about which he complained in the course
of his employment. He reported that misuse up the chain of his command and took
action as an employee, as instructed by the director of his division. There is no evidence
that Valadez relied on any information gleaned from outside his own work station or that
he reported it to any person outside his chain of command. Neither is there any evidence,
prior to his summary judgment affidavit, that he communicated any concern regarding
the public interest outside his workplace or that his concern was the state of maintenance
and repairs to equipment used by others rather than the safety of his workplace.
“[T]he caselaw is unanimous in holding that employee's communications that
relate to his own job function up the chain of command, at least within his own
department or division, fall within his official duties and are not entitled to First
Amendment protection.” Davis v. McKinney, 518 F.3d 304, 313 n.3 (5th Cir. 2008);
Garcetti, supra at 421. See also, Dodds v. Childers, 933 F.2d 271, 273-74 (5th Cir.
1991); Dorsett v. Board of Trustees for State Colleges & Univs., 940 F.2d 121, 125 (5th
Cir. 1991); Moore v. Mississippi Valley State Univ., 871 F.2d 545, 551 (5th Cir. 1989).
The Court concludes that, as a matter of law, Valadez made the reports on which he bases
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his free speech claim in the context of his status as a public employee and they are not
entitled to First Amendment protection.
Because the Court has determined that Valadez’s speech is not entitled to First
Amendment protection, the Court need not, and does not, consider whether he satisfied
the requirements of Monell in seeking to hold the City liable for his claim.
CONCLUSION
For the reasons set out above, the Court GRANTS the motion for summary
judgment (D.E. 26) and this action is DISMISSED WITH PREJUDICE.
ORDERED this 21st day of February, 2017.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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