Stephens v. City of Austin, et al
ORDER GRANTING IN PART AND DENYING IN PART Defendants City of Austin and Art Acevedo's 76 Motion for Reconsideration of 74 Order Granting Discovery on Pretext. Signed by Judge David A. Ezra. (klw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
THE CITY OF AUSTIN, and ART
CV. NO. 1:12-CV-659-DAE
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR RECONSIDERATION
On July 22, 2014, Defendants City of Austin and Art Acevedo
(collectively, “Defendants”) filed a Motion for Reconsideration of this Court’s July
18, 2014 Order granting discovery on pretext. (“Mot.,” Dkt. # 76.) Defendants
argued that any pretext discovery should be limited to employees who might be
similarly situated to Plaintiff Debra Stephens (“Stephens”). (Id. at 1.)
Specifically, Defendants requested this Court to limit the discovery to other
employees in the Forensic Science Division of the Austin Police Department who
were disciplined for similar infractions. (Id. at 4.) On July 28, 2014, Stephens
filed a Response. (“Resp.,” Dkt. # 77.) That same day, Defendants filed a Reply.
(“Reply,” Dkt. # 78.)
To state a cause of action for First Amendment retaliation, a plaintiff
must establish that “(1) [she] suffered an ‘adverse employment decision’; (2) [she]
speech involved ‘a matter of public concern’; (3) [she] ‘interest in commenting on
matters of public concern . . . outweighs the [d]efendant’s interest in promoting
efficiency’; and (4) [its] speech motivated the adverse employment decision.”
Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013) (quoting Beattie v.
Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001)).
Once a plaintiff has met her “burden of showing that his protected
speech was a substantial or motivating factor in the defendant’s adverse
employment decision, a defendant may still avoid liability by showing, by a
preponderance of the evidence, that it would have taken the same adverse
employment action even in the absence of the protected speech.” Id. (citing Mt.
Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); accord
Kostic v. Texas A & M Univ. at Commerce, 3:10-CV-2265-M-BN, 2014 WL
1315657, at *22 (N.D. Tex. Mar. 31, 2014) (“That is, even if Plaintiff could show
that his protected speech was a motivating factor in his termination, the Individual
Defendants may still avoid liability by showing they would have taken the same
action of terminating him even in the absence of the protected speech.”).
“An employee can, however, refute that showing by presenting
evidence that ‘his employer’s ostensible explanation for the discharge is merely
pretextual.’” Id. (quoting Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir. 1991)).
“Pretext is more than a mistake on the part of the employer; it is a phoney excuse.”
Hudson v. Chicago Transit Auth., 375 F.3d 552, 561 (7th Cir. 2004). A plaintiff
may prove pretext by establishing that (1) the employer’s reason had no basis in
fact; (2) that the explanation was not the real reason for its action; or (3) that the
reason stated was insufficient to warrant the adverse job action. Atanus v. Perry,
520 F.3d 662, 674 (7th Cir. 2008); accord Morris v. City of Chillicothe, 512 F.3d
1013, 1019 (8th Cir. 2008) (“Pretext may be shown with evidence that an employer
has proffered an explanation with no basis in fact, with evidence that the plaintiffs
recently received favorable reviews, or with evidence that the employer’s proffered
reason for its employment decision has changed substantially over time.”). The
question presented by Defendants’ Motion is the scope of discovery on pretext.
Federal Rule of Civil Procedure 26(b) permits “discovery regarding
any matter not privileged, which is relevant to the subject matter in the pending
action.” Courts have traditionally construed “relevance” broadly: information is
relevant if it “encompass[es] any matter that bears on, or that reasonably could lead
to other matter that could bear on, any issue that is or may be in the case.”
Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see also Fed. R.
Civ. P. 26(b) (noting that discoverable information is not limited to admissible
evidence, but includes anything “reasonably calculated to lead to the discovery of
Defendants argue that this Court should limit the pretext discovery to
instances where similarly situated employees were punished for similar behavior
because Stephens “is attempting to show that the City’s stated reasons for her
termination are pretextual because it did not punish other employees who engaged
in similar behavior.” (Mot. at 2.) They assert that “[t]o be similarly situated,
employees must have the same supervisors, work for the same division in a
company, and have similar job responsibilities.” (Id.) As a result, Defendants ask
this Court “to narrow the discovery to identifying other instances, if any, where
employees were disciplined for similar infractions (e.g., engaging in insubordinate
and disruptive behavior, failing to secure evidence, and failing to follow Forensic
Science Division and other lab SOPs).” (Id. at 3.) Stephens counters that this
Court should “not limit discovery to other employees with similar job
responsibilities who worked in the Forensic Science Division of APD.” (Resp. at
2.) She contends that such a limitation is inappropriate in the context of discovery,
which “is not limited to what is ultimately admissible” as Defendants proffer. (Id.)
Given that both parties’ arguments center on whether pretext discovery should be
limited to (1) similarly situated employees and (2) similar infractions, the Court
will analyze those two potential limitations on pretext discovery.
Similarly Situated Employees
Defendants rely on Lee v. Kansas City Southern Ry. Co., 574 F.3d
253 (5th Cir. 2009) to assert that this Court should limit the scope of Stephens’
discovery request by focusing on current or former employees who are or were
similarly situated to Stephens (i.e., have the same supervisors, work for the same
division in a company, and have similar job responsibilities). (Mot. at 2.) In a
footnote, Defendants attempt to justify why discovery should be limited to
similarly situated employees: “Although Plaintiff is not alleging disparate
treatment under Title VII or the ADEA [as in Lee], she is attempting to show that
the City’s stated reasons for her termination are pretextual because it did not
punish other employees who engaged in similar behavior.” (Id. at 2 n.2.) They
continue such argument in their Reply brief, adding “Because Plaintiff cannot,
under any circumstances, compare her treatment to that of employees with entirely
different jobs who committed entirely different infractions, discovery about those
employees is entirely outside the scope of FRCP 26(b)(1).” (Reply at 2 (citing
Vann v. Mattress Firm, No. H-12-3566, 2014 WL 1365943, at *3 (S.D. Tex. Apr.
7, 2014) (limiting plaintiff’s discovery to other employees who were similarly
situated and held the same job title as plaintiff); Cooper v. City of Dall. Tex., No.
3:04-CV-2407-H, 2006 WL 1983234, at *2 (N.D. Tex. July 17, 2006) (limiting
plaintiff’s request for discovery to other employees with the same job title, and
who worked in the same division or had the same supervisor)).)
However, Defendants are merely assuming that pretext discovery is
limited to similarly situated employees in a First Amendment retaliation case.
Admittedly, a plaintiff showing that he or she was replaced by someone outside his
or her protected class or received less favorable treatment than a similarly situated
individual in the protected class is a requirement in discrimination cases. See
Okoye v. Univ. of Tex. Hous. Health Sci. Ctr., 245 F.3d 507, 513–14 (5th Cir.
2001); Wyvill v. United Companies Life Ins. Co., 212 F.3d 296, 302 (5th Cir.
2000). In fact, all three of the cases Defendants rely on exclusively deal with Title
VII, ADEA, and FMLA discrimination claims. See Lee, 574 F.3d at 259 (“The
question whether Lee presented a prima facie case of racial discrimination turns
here on whether either or both of the white engineers identified by Lee as
comparators were similarly situated to him.”); Vann, 2014 WL 1365943, at *3
(“[I]n order to be relevant to plaintiff’s [race and age discrimination] claims, she
must show that the request involves individuals who are similarly situated to
her.”); Cooper, 2006 WL 1983234, at *2 (limiting a plaintiff’s discovery request to
“similarly situated” employees for purposes of her Title VII, ADA, and FMLA
claims). Yet, this Court has not found any case where a court equated pretext to
similarly situated employees in the First Amendment retaliation context, leading
the Court to the believe that pretext evidence is not necessarily circumscribed to
“similarly situated” employees.
Nevertheless, Stephens does appear to agree that the disciplinary
actions against sworn officers in the Austin Police Department may not be
probative of pretext. (Resp. at 2–3 (“While the question of sworn v. unsworn
employees is a closer call . . . .”).) The Court agrees that disciplinary evidence
against sworn police officers within the Austin Police Department may not
sufficiently lead to discoverable information regarding whether Defendants’ nonspeech related reasons for terminating Stephens were pretextual. Therefore, the
Court directs Defendants to produce evidence identifying instances where an
employee of the Austin Police Department Crime Lab—as opposed to the entire
Austin Police Department—was disciplined, written up, suspended, terminated,
demoted, docked pay, involuntarily moved, received a written or verbal warning,
or otherwise disciplined since March 2005.
The leading case in the Fifth Circuit regarding discovery of personnel
files is Coughlin v. Lee, 946 F.2d 1152 (5th Cir. 1991). The plaintiffs in Coughlin
were former deputy sheriffs who claimed that they were improperly discharged for
failing to support the sheriff in his re-election bid. The plaintiffs argued that the
cited reason for their discharge—violation of department policy against release of
information during an ongoing investigation—was pretext for their dismissal. They
sought discovery of personnel files within the department in an effort to show that
other employees had committed similar infractions and had not been dismissed.
The district court limited discovery of the personnel files solely to those files that
evidenced removal or disclosure of confidential material—misconduct similar to
the allegations of the plaintiffs—and to a two-year period.
On appeal, the Fifth Circuit determined that the district court had
erred in limiting discovery of personnel files. Id. at 1160. The court stressed that
“[i]n Title VII litigation, in which plaintiffs are required to demonstrate pretext,
courts have customarily allowed a wide discovery of personnel files” because “[a]ll
or some parts of these personnel files could be central to the plaintiffs’ effort to
prove pretext.” Id. at 1159. The court explained:
The plaintiffs sought discovery of the personnel files of JPSO
employees who had arguably been guilty of a variety of infractions
more serious than those committed by plaintiffs, but who nevertheless
were not discharged by [the defendant]. Allegedly, these employees
were political supporters of Lee and had contributed to his campaign
fund. Evidence of repeated disparity in the punishment meted out to
[the defendant’s] supporters and non-supporters is clearly relevant in
Id. (emphasis added). Given that “[t]he district court appear[ed] to have limited
discovery because it considered these files irrelevant to the plaintiffs’ freedom of
speech case,” the Fifth Circuit reversed the district court’s ruling on the plaintiffs’
requested discovery. Id. at 1160.
In light of Coughlin, the Court is unwilling to limit pretext discovery
solely to those infractions Stephens was charged with committing. 1 “Evidence of
repeated disparity in the punishment meted out” to Austin Police Department
Crime Lab employees can be relevant to whether Stephens was truly terminated for
her protected speech, as opposed to Defendants’ proffered non-speech reasons. Id.
at 1159. For example, if an employee was falsifying evidence, but was not
terminated like Stephens, this could potentially demonstrate that Defendants’
reasons for terminating Stephens for less severe infractions were pretextual. As
such, the Court maintains that Defendants must produce evidence identifying
instances where an employee of the Austin Police Department Crime Lab was
disciplined, written up, suspended, terminated, demoted, docked pay, involuntarily
moved, received a written or verbal warning, or otherwise disciplined since March
For the foregoing reasons, the Court GRANTS IN PART and
The Court is aware, however, that analyzing Stephens’ pretext evidence may be
limited to similar infractions. See Jordan v. Ector Cnty., 516 F.3d 290, 301 (5th
Cir. 2008) (“However plausible, even compelling, the proffered jurisdictions for
firing Jordan sound in isolation, the evidence that others had engaged in conduct
similar to Jordan’s without being disciplined is sufficient for a reasonable jury to
conclude that Morgan would not have taken the same action in the absence of the
protected conduct.” (emphasis added)).
DENIES IN PART Defendants’ Motion for Reconsideration. The Court
ORDERS Defendants to produce evidence identifying instances where an
employee of the Austin Police Department Crime Lab was disciplined, written up,
suspended, terminated, demoted, docked pay, involuntarily moved, received a
written or verbal warning, or otherwise disciplined since March 2005. The original
time limits for tendering such discovery stand: Defendants shall produce such
materials within 30 days from the issuance of the Court’s July 18, 2014 Order.
After the expiration of the thirty-day period, Stephens shall have 10 days to file
supplemental briefing to present evidence that Defendants’ proffered explanation
for Stephens’ termination was pretextual. Defendants will have 5 days after
Stephens’ supplemental briefing on pretext to file a response.
IT IS SO ORDERED.
DATED: Austin, Texas, July 31, 2014.
David Alan Ezra
Senior United States Distict Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?