Stephens v. City of Austin, et al

Filing 82

ORDER DENYING 70 Plaintiff's Objection re 69 Report and Recommendations filed by Debra Stephens ; ADOPTING IN PART AND REJECTING IN PART 69 Report and Recommendations; GRANTING 55 MOTION for Summary Judgment filed by City of Austin, Art Acevedo. Signed by Judge David A. Ezra. (jk)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

DEBRA STEPHENS,

)
)
Plaintiff,
)
)
vs.
)
)
THE CITY OF AUSTIN and
)
ART ACEVEDO,
)
)
Defendants.
)
________________________________ )

CV. NO. 1:12-CV-659-DAE

ORDER: (1) DENYING PLAINTIFF’S OBJECTIONS TO REPORT AND
RECOMMENDATION; (2) ADOPTING IN PART AND VACATING IN PART
REPORT AND RECOMMENDATION
On June 26, 2014, the Court heard oral argument on the Objections to
Magistrate Judge Mark Lane’s Report and Recommendation filed by Plaintiff
Debra Stephens (hereinafter “Plaintiff” or “Stephens”). (“Obj.,” Dkt. # 70.)
Andrew Skemp, Esq., appeared at the hearing on behalf of Stephens; Misell B.
Kneeland, Esq., appeared on behalf of Defendants City of Austin and Art Acevedo
(collectively, “Defendants”). After careful consideration of the arguments
presented at the hearing, as well as the supporting and opposing memoranda, the
Court DENIES Stephens’s Objections and ADOPTS IN PART AND VACATES
IN PART the Magistrate Judge’s Report and Recommendation.
1

BACKGROUND
I.

Factual Background
Stephens began working as a senior chemist for Austin Police

Department’s (“APD”) Forensic Lab (“Lab”) in 2002. (Dkt. # 55 (“Mot.”), Ex. J
(“Stephens Dep.”) at 19–20; Mot., Ex. C (“Harris Decl.”) ¶ 14; Dkt. # 62
(“Resp.”), Ex. 8 (“Stephens Aff.”) ¶ 1.) Her initial job duties included blood
alcohol testing and drug analysis. (Stephens Dep. at 28.) At the time she began
her employment with APD, Stephens was certified as a Technical Breath Test
Supervisor. In 2006, she assumed responsibility for running the breath alcohol
testing program; she continued to perform blood alcohol testing and drug analysis,
and additionally began testifying in court regarding her work. (Stephens Dep. at
29; Mot., Ex. F (“Rodriguez Decl.”) ¶ 7; Stephens Aff. ¶ 1.)
In 2007, Stephens applied for the newly created Lab position of
Quality Assurance Manager, as well as for the positions of Chemistry Section
Manager and Forensic Chemistry Section Supervisor. Stephens was not hired for
any of these positions. Instead, Gloria Rodriguez (“Rodriguez”) was promoted to
Forensic Chemistry Section Supervisor, and Stephens began reporting to her.
(Harris Decl. ¶ 15; Rodriguez Decl. ¶ 4; Stephens Aff. ¶¶ 2–3.)
In 2010 and 2011, William Gibbens (“Gibbens”), the Forensic
Science Division Manager, supervised Rodriguez. Gibbons reported to Ed Harris
2

(“Harris”), Chief of Field Support Services. Harris reported to Assistant Chief Sean
Mannix (“Mannix”), who in turn reported to Chief Acevedo (“Acevedo”). (Harris
Decl. ¶¶ 9–10; Stephens Aff. ¶ 4.) Only Acevedo had the authority to terminate an
employee, but he relied heavily on the information provided to him by his
Assistant Chiefs in making his decisions. (Mot., Ex. A (“Acevedo Decl.”) ¶ 11;
Mot., Ex. G (“Acevedo Dep.”) at 129–30; Mot., Ex. D (“Mannix Decl.”) ¶ 17.)
In October 2010, Stephens informed Rodriguez that an issue had
arisen in a case in which she was to testify about a blood–alcohol analysis she
performed. Stephens had accepted a phone call from the defense attorney in
August 2009 and mistakenly reported to the defense attorney that the blood alcohol
concentration level was under .08 (below the legal limit for intoxication). When
Stephens subsequently drafted her report, she realized she had provided the results
for a different sample. She notified the defense attorney of the correct result (a
blood alcohol concentration of .14, above the legal limit) and provided counsel a
copy of her report. (Rodriguez Decl. ¶ 9 & Ex. 1; Mot., Ex. B (“Gibbens Decl.”)
¶ 9; Harris Decl. ¶¶ 16–17; Mannix Decl. ¶¶ 22–23; Acevedo Decl. ¶ 17; Stephens
Aff. ¶ 5.)
Rodriguez and her supervisors believed the release of a non-final,
non-reviewed result without a discovery order, subpoena, or open records request
violated the Lab’s standard operating procedures (“SOPs”). In addition, Rodriguez
3

was concerned because the case file did not contain any documentation of
Stephens’s conversations with defense counsel. (Rodriguez Decl. ¶ 10; Gibbens
Decl. ¶ 10; Harris Decl. ¶¶ 17–18; Mannix Decl. ¶ 24, 26; Acevedo Decl. ¶ 19.)
Further, Rodriguez was told by Stephens that the Assistant District
Attorney (“ADA”) prosecuting the case informed her that the DA’s office had
requested a copy of her Houston Police Department employment file. According to
the ADA, defense counsel had claimed information in the file demonstrated
Stephens had issues with documenting and handling evidence in Houston. The
ADA told Stephens he considered the information in her employment file to be
“Brady” material which he would feel obligated to release to defense counsel in
future cases. (Rodriguez Decl. ¶ 11; Mot., Exs. 1–2; Gibbens Decl. ¶ 9; Harris
Decl. ¶ 19; Mannix Decl. ¶ 25; Acevedo Decl. ¶ 18). APD had not previously been
aware of Stephens’s improper disclosure of information in Houston. (Harris Decl.
¶ 20).
Rodriguez reported the issues to Gibbens, who in turn spoke with
Leticia Paredes (“Paredes”), APD’s Human Resources (“HR”) Manager. Paredes
advised Gibbens to proceed with a pre-termination hearing as she believed
Stephens’s improper release of results to be a terminable offense. Gibbens
discussed the matter with Harris and Mannix, who agreed that a pre-termination
hearing was appropriate. (Rodriguez Decl. ¶ 13 & Ex. 3; Gibbens Decl. ¶¶ 9, 11;
4

Harris Decl. ¶ 21; Mannix Decl. ¶ 26; Mot., Ex. E (“Paredes Decl.”) ¶ 6). On
November 4, 2010, pending an investigation and possible disciplinary actions,
Mannix, Gibbens and Harris decided Stephens’s duties as a Breath Test Technical
Supervisor within the Lab should be taken away. She was removed from working
on blood and breath alcohol testing and was restricted to drug testing. (Harris
Decl. ¶ 22; Gibbens Decl. ¶ 12; Mannix Decl. ¶ 26; Stephens Aff. ¶ 5).
Prior to the hearing, on November 12, 2010, Stephens sent an email to
approximately ninety-five forensic and legal colleagues. The email states:
I just wanted to inform all of you that I have been scheduled for a
“pre-termination” hearing on Monday, November 15th, 2010 by Asst.
Chief Sean Mannix. I released the results of a blood alcohol case to
defense attorney, Betty Blackwell, for one of her clients always
believed that at the conclusion of my analysis that these results were a
matter of public record, but my chain of command found an SOP
which states that “all lab reports are confidential”. I believe that the
defense (an officer of the court) is entitled to this information, just as
much as the prosecutor who gets the information automatically.
I feel like I am up for the fight of my life . . . my career. I have been a
forensic scientist for more than twenty years and I love my job!
If you have an opportunity in the next couple of days to share a few
words of support, I would greatly appreciate it.
(Stephens Dep. at 61; Resp., Ex. 3; Stephens Aff. ¶ 6).
The pre-termination hearing was held on November 19, 2010. At the
hearing, Stephens stated she was unaware of the APD policy providing that test
results were confidential and further that she believed such a policy would conflict
5

with state law. Rodriguez, in turn, explained that regardless of confidentiality,
results were to be released in accordance with certain procedural requirements.
Specifically, the analysis must be complete and reviewed, and a request in the form
of subpoena, open records request, or discovery motion must be made before the
information is released. (Rodriguez Decl. ¶ 15; Gibbens Decl. ¶ 13; Harris Decl.
¶ 23; Mannix Decl. ¶ 29).
At the hearing, Mannix found that Stephens had violated the SOPs
and that the SOPs did not conflict with state law. Mannix concluded, in part
because of Stephens’s long tenure with the department and the quality of her
substantive work, that Stephens should not be terminated but suspended for three
days, placed on six months of disciplinary probation, and permanently removed
from her responsibilities as a Breath Test Technical Supervisor. (Stephens Dep. at
147; Rodriguez Decl. ¶ 15; Gibbens Decl. ¶ 13; Harris Decl. ¶ 24; Mannix Decl.
¶¶ 28–29; Paredes Decl. ¶ 7; Stephens Aff. ¶ 6.)
On November 30, 2010, Stephens filed a grievance against APD,
complaining that APD policy regarding dissemination of lab results violated Texas
law and appealing her suspension. Rodriguez, as Stephens’s supervisor, denied the
grievance. Stephens appealed to Acevedo, who denied the appeal after reviewing
the matter with Mannix. Stephens appealed Acevedo’s rejection of her grievance
to an outside hearing officer, pursuant to city policy. (Stephens Dep. at 74–75 &
6

Ex. 6; Paredes Decl. ¶¶ 8–10; Rodriguez Decl. ¶¶ 18–19; Mannix Decl. ¶¶ 34–37;
Acevedo Decl. ¶¶ 22–24; Acevedo Dep. at 125–31; Stephens Aff. ¶ 6.)
In November 2010, Stephens sent a list of cases to APD HR
documenting instances where members of the Lab had released results of drug
analysis without conducting any actual testing. The report was forwarded by APD
HR to Rodriguez in early December 2010 for explanation. (Stephens Aff. ¶ 7;
Resp. Ex. 13 at COA 1532–34.)
Harris asked Gibbens to keep him apprised of Stephens’s conduct
during her probation. Gibbens generally reviewed Stephens’s conduct with Harris
verbally, but he did write two formal memos, one on February 18, 2011 and one on
April 10, 2011. Gibbens also occasionally forwarded Harris emails relating to
Stephens. (Gibbens Decl. ¶ 15; Mot., Exs. 1–2; Harris Decl. ¶ 34.)
On November 19, 2010, Laura Carroll (“Carroll”), Stephens’s
co-worker who had assumed Stephens’s former responsibilities with blood alcohol
and breath testing, wrote a memo to Gibbens and Rodriguez expressing her
concerns about working with Stephens, stating Stephens was withholding
information and actively undermining her. (Rodriguez Dep. 49–52 & Ex. 3;
Rodriguez Decl. ¶ 24; Gibbens Decl. ¶ 21.) According to Rodriguez, on a regular
basis, Stephens expressed dissatisfaction with her duties, often yelling at other
employees and taking her frustrations out on them. Some of the incidents were
7

documented by Stephens’s co-workers, and some were reported to Paredes in HR.
(Rodriguez Dep. at 13–16; Rodriguez Decl. ¶ 25; Paredes Decl. ¶¶ 15, 20.)
Rodriguez testified that she became aware that Stephens was
attempting to remain certified as a Breath Test Technical Supervisor. Rodriguez
was concerned that Stephens was using City time or resources to do so, despite
having been stripped of breath test duties. (Rodriguez Dep. at 186–87; Gibbens
Dep. at 110–11; Rodriguez Decl. ¶¶ 26–27; Gibbens Decl. ¶ 23.) Rodriguez gave
Stephens a cease and desist memo on December 21, 2010, forbidding Stephens
from using City time to retain her certification. (Rodriguez Dep. at 186–88;
Stephens Dep. at 190; Resp., Ex. 29; Rodriguez Decl. ¶ 27; Stephens Aff. ¶ 8.)
According to Rodriguez and a co-worker Rodriguez asked to act as a witness,
Stephens acted insubordinately—pointing her finger in Rodriguez’s face, speaking
loudly, calling Rodriguez “evil”, and stating that she wished Rodriguez would
“suffer.” (Rodriguez Decl. ¶ 28, Mot., Ex. 8; Paredes Decl. ¶ 15.)
According to Stephens, Rodriguez told her verbally that she would
lose her certification. (Stephens Dep. at 190–92.) Stephens testified in her
deposition that she said, “‘Would you like to suffer like I’m suffering?’”
(Stephens Dep. at 102–03). In response to the question, “Did you call Gloria evil
and say you hope she suffers like you have?” Stephens testified, “I didn’t ask that
she suffer more than I suffered.” (Mot., Ex. L at 239). Stephens states that she
8

reported to the City’s HR that Rodriguez was harassing her and that it was
improper to try to prevent her from maintaining her certification. The matter was
turned over to APD HR in January 2011, and APD HR found Rodriguez had done
nothing wrong. (Stephens Aff. ¶ 8.)
Harris learned of certain reported issues concerning Stephens’s
conduct. Because he was concerned about the effect her conduct might have on
the operations and morale in the Lab, Harris raised these issues with Mannix and
Paredes. Mannix directed Harris to have Gibbens and Rodriguez document
Stephens’s conduct and put her on notice that the conduct must be stopped. (Harris
Decl. ¶¶ 35–37; Paredes Decl. ¶ 16; Mannix Decl. ¶ 41; Gibbens Decl. ¶ 24.)
On January 12, 2011, in the presence of her attorney, Stephens
received a memo documenting a December 17, 2010 confrontation with another
employee and the December 21, 2010 incident with Rodriguez. The memo
referenced APD policies prohibiting unprofessional and insubordinate behavior
and instructed Stephens to comply with those policies. (Rodriguez Decl. ¶ 29;
Gibbens Decl. ¶ 25 & Ex. 2(F); Stephens Dep. at 98 & Ex. 8; Paredes Decl. ¶ 16.)
On February 8, 2011 Rodriguez issued Stephens a corrective action
report relating to release of non-final drug analysis reports. Specifically, the report
detailed that Stephens had released results to the investigator before the case was
administratively reviewed. Although the analysis was determined to be correct
9

when it was reviewed, Stephens’s early dissemination of the report violated the
Lab’s SOPs. (Rodriguez Decl. ¶ 30; Gibbens Decl. Ex. 2(G).)
A few days later, Gibbens was contacted by the Lab’s Quality
Assurance Manager Tony Arnold (“Arnold”). Arnold reported that on Friday,
February 11, 2011, Stephens left for the day without securing drug evidence,
including cocaine. According to Harris, this incident was particularly concerning
because the evidence would have remained unsecured until Monday if Arnold had
not discovered it. (Gibbens Decl. ¶ 27 & Ex. 2(H); Harris Decl. ¶ 39.)
On February 15, 2011 an administrative hearing on Stephens’s
grievance concerning her November 2010 disciplinary action was conducted. An
independent hearing officer, Austin attorney Sue Berkel (“Berkel”), presided over
the hearing. Berkel considered both documentary evidence and oral testimony
from Rodriguez, Gibbens, Arnold, Stephens, Mannix and other APD employees.
(Rodriguez Decl. ¶ 22; Gibbens Decl. ¶ 18; Harris Decl. ¶ 29; Mannix Decl. ¶ 38;
Paredes Decl. ¶¶ 11–14; Stephens Dep. at 106–07 & Ex. 14; Stephens Aff. ¶ 9.)
Berkel issued a report on February 22, 2011 that recommended
reversing all discipline against Stephens and reinstating her to her original position
as a Breath Test Technical Supervisor. Berkel found that APD policy regarding
release of information “would appear to be overbroad and run contrary to state law
and the AG’s opinions which have construed state law.” (Stephens Dep. Ex. 14.)
10

On February 23, 2011, Stephens sent Berkel’s report to Rodriguez by
email, stating her intent “to be gracious in victory” and “to continue to follow all
APD policies.” (Stephens Dep. at 109 & Ex. 13.) Rodriguez found the tone of the
email inappropriate and forwarded it to Harris. Harris was concerned by both the
email and other reports of Stephens’s conduct. He consulted with Mannix, and
they decided it was time to start working on discipline related to Stephens’s other
conduct. Harris and Mannix directed Paredes to begin working on a disciplinary
meeting memo. (Rodriguez Decl. ¶ 23; Harris Decl. ¶¶ 30–32; Mannix Decl.
¶¶ 40–42; Paredes Decl. ¶ 18.)
Berkel’s report was also forwarded to the City Manager’s office. On
April 6, 2011, the City Manager’s decision upholding Stephens’s discipline was
forwarded by email to the relevant parties. (Harris Decl. ¶ 33.)
According to Rodriguez, on March 7, 2011, Stephens falsely accused
Rodriguez of forwarding her a “bogus” court order. (Rodriguez Decl. ¶ 31.) Later
in the day, Stephens confronted Rodriguez “in a hostile way” and threatened
Rodriguez with a law suit. Rodriguez documented the conversations in a memo to
Paredes, copying Gibbens and Harris. (Rodriguez Decl. ¶ 31 & Ex. 10; Gibbens
Decl. ¶ 26; Harris Decl. ¶ 40.)
After this incident, Stephens sent an email to Gibbens, complaining
about Rodriguez sending her an invalid court order. Stephens wrote:
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I am not suggesting that you remove Ms. Rodriguez from her current
job responsibilities, suspend her for three days, place her on probation
for six months, humiliate her in front of her co-workers and
professional associates, or bring her before the Assistant Chief and the
Human Resources Manager for disciplinary action, but clearly she has
violated our Division SOP’s, Chapter 14 by not verifying that this was
indeed a valid court order before proceeding to order the reanalysis of
this blood sample.
Forensic Science Division SOP, Chapter 14: “Evidence
and the contents of laboratory case files under the control
of the APD Forensic Science Division will not be
released for defense examinations without a properly
executed court order or subpoena for the records.”
She clearly communicated with this defense attorney without
communicating with the prosecutors in this case. I trust that you will
take the appropriate steps to admonish Ms. Rodriguez for her actions.
I would also humbly expect to be recognized for my astute actions in
acting as a “gatekeeper” to the fair and honest administration of
justice.
(Gibbens Decl. ¶ 26 & Ex. 3.) According to Gibbens, he found Stephens’s “tone
and comments to be improper and insubordinate.” (Gibbens Decl. ¶ 26.) Gibbens
forwarded the email to Paredes for inclusion in the disciplinary meeting memo she
was drafting. (Gibbens Decl. Ex. 3; Paredes Decl. ¶ 21.) On March 16, 2011,
Paredes shared the information with the City’s HR, noting the schedules of Mannix
and Acevedo had prevented scheduling a pre-termination hearing. (Harris Decl.
¶ 41; Paredes Decl. ¶ 23; Mannix Decl. ¶ 43; Acevedo Decl. ¶ 32.)
On April 5, 2011, Stephens gave Rodriguez a fax received on March
25, 2011, relating to a discovery motion in a pending case. Rodriguez noted the
12

cover letter stated Stephens had prior contact with the defense attorney, but the
case file did not reflect that contact or any indication that the prosecutor had been
notified. Rodriguez later discovered that Stephens had already sent the sample to
an offsite lab on behalf of the defendant. (Rodriguez Decl. ¶ 32; Rodriguez Dep.
164–65 & Ex. 10.)
On April 7, 2011, Stephens sent an email to Jeff Burton (“Burton”) of
the City’s HR (the “Burton Email”) complaining of the City’s failure to accept
Berkel’s recommendation, that the Lab’s policies violated the law, and that Lab
personnel were not qualified. (Resp., Ex. 4.) This email was forwarded to Paredes
the following day. (Resp., Ex. 13 at 172.) Burton investigated the issues raised in
the email and followed up with Stephens. (Id. at 45, 47–50, 172–73.)
On April 7, 2011, Rodriguez forwarded a job posting for a position in
the Lab to the Texas Department of Public Safety (“DPS”) and Southwestern
Association of Forensic Scientists (“SWAFS”). The posting was for Carroll’s
position with responsibility for blood alcohol analysis and breath test technical
supervision.1 DPS forwarded the job posting to its certified breath test technical
supervisors, including Stephens and Carroll. (Rodriguez Decl. ¶¶ 33–34; Gibbens
Decl. ¶ 28; Paredes Decl. ¶ 25; Rodriguez Dep. at 127.) In response, Stephens sent

1

As discussed below, Carroll had resigned her position with APD on April 1,
2011.
13

an email (the “Beware Email”) to the entire recipient list which states:
“BEWARE!! These people will do anything to destroy your career. Laura Carroll
has resigned under the strain and they have done everything in their power to
destroy my career as a Technical Supervisor as well.” (Stephens Dep. at 129;
Resp., Ex. 2.) A colleague forwarded the Beware Email to Gibbens on April 8.
Gibbens, in turn, forwarded it to Harris, Mannix, Paredes, and Acevedo. Mannix
and Paredes considered the email unprofessional. (Stephens Dep. Ex. 19; Harris
Decl. ¶ 43; Gibbens Decl. ¶ 29; Paredes Decl. ¶ 26; Mannix Decl. ¶¶ 46–47;
Acevedo Decl. ¶ 29).
On April 7, 2011, Stephens emailed Brandon Conrad (“Conrad”) of
DPS (the “DPS Email”). Stephens asked Conrad to remove the APD job posting
from the SWAFS website. She described APD as a “toxic work environment” and
accused APD administrators of doing “everything in their power to destroy my
character, reputation, and career by reprimanding me for following the laws in the
State of Texas.” (Resp., Ex. 3.) Stephens further wrote:
I would hate for anyone to accept a position with this department
thinking that they will be treated fairly by this administration. I
intended to bring my supervisor, Gloria Rodriguez, up on ethics
charges for lying under oath and bolstering her credentials. SWAFS
should post a warning to every ethical forensic scientist that this is not
an organization worthy of SWAFS support. In addition, they have
destroyed the careers of many other fine scientists.
(Id.)
14

On April 7, 2011, Terry Gallegos (“Gallegos”), a colleague in Tucson,
Arizona who had acted as auditor of the Lab in 2010, emailed Stephens about the
job posting, asking “It looks like your job position? How are you?” (Stephens
Dep. at 117–18 & Ex. 17.) Stephens responded to Gallegos via email (“Gallegos
Email”) and blind-copied Burton, but no one else. (Resp., Ex. 1.)
In her lengthy response, Stephens addressed a number of topics,
beginning with her November 2010 discipline and subsequent grievance, as well as
the City Manager’s decision to uphold her suspension. (Stephens Dep. Ex. 17.)
Stephens further wrote:
While all of this was going on, they divided my responsibilities
amongst two of my co-workers. The young chemist who was
assigned the breath alcohol duties, resigned under pressure. She
became addicted to Xanax and lost so much weight that she was
diagnosed “anorexic”. When she asked to be returned to the drug lab,
they wouldn’t let her and her husband made her resign in order to rest
and regain her health. They destroyed this poor little girl’s career!
They are truly “evil”! And this was only half of the job I handled for
them! The chemist assigned the blood alcohol duties has never been
trained to interpret the results and has refused to offer any
extrapolation testimony (one [of] the requirements of an alcohol
prosecution in Texas). So, I am still subpoenaed to testify in all these
cases, as they have no other expert.
The State of Texas SOPs actually follow the law and state that all
laboratory results are confidential . . . “except blood alcohol reports.”
And they are ISO certified. We still only hold a “legacy” certification.
(Id.) Stephens continued, stating she was considering filing a professional conduct
complaint with SWAFS against Rodriguez based on what Stephens viewed as
15

Rodriguez “bolstering . . . her expertise.” Stephens also recapped the hearing held
in front of Berkel, and commented “because I made them look bad, they have
continued to punish me in any way that they can.” She referenced the DPS email
and wrote she had requested Conrad remove the job posting from the SWAFS
website. Stephens raised concerns about the qualification of Gibbens and others at
the Lab. She also stated her belief that “we would be better off with a regional lab
. . . combining resources with the county and our local university.” (Id.)
On April 8, 2011, Burton forwarded the Gallegos Email to Paredes.
He also forwarded the email to Mark Washington and Carla Scales of the City’s
HR. Burton wrote:
Mark and Carla - earlier this week the City Manager issued a decision
to uphold the suspension and disciplinary probation for Debra
Stephens, APD Forensic Scientist. It is now alleged that Ms. Stephens
attached a note (see her comments in red) regarding the posting that I
believe in essence replaces her old role. Additionally Ms. Stephens
bcc’d me on a note she sent to a collegue (sic) in Arizona. APD views
both of these letters to be in violation of APD General Orders and is
moving to terminate Ms. Stephens. Ms. Stephens is likely to grieve
this issue, has an attorney and I believe likely to seek media attention
or escalate her concerns within or outside the City.
(Resp., Ex. 7).
According to Stephens, on April 11, 2011, she “was forced to leave
the Lab and return [her] keys and security clearance.” (Stephens Aff. ¶ 13).
Rodriguez and Gibbens gave Stephens a pre-termination notice dated April 11,
2011, and she was placed on administrative leave. (Rodriguez Decl. ¶ 35; Gibbens
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Dep. at 22, 158–59; Gibbens Decl. ¶ 32; Paredes Decl. ¶ 29; Stephens Dep. Ex.
18.) The notice was signed by Mannix and informed Stephens that a
pre-termination hearing had been scheduled for April 20, 2011. The procedure
was described, as well as the seven specific instances of alleged misconduct.
(Stephens Dep. Ex. 18).
Prior to the pre-termination hearing, Mannix briefed Acevedo on the
general issues relating to Stephens’s conduct, but not the details. (Acevedo Dep. at
50; Acevedo Decl. ¶ 33; Mannix Decl. ¶ 52). According to Rodriguez, Harris, and
Mannix, at the pre-termination hearing on April 20, 2011, Stephens proffered a
number of excuses for her conduct, but refused to take any responsibility for her
actions. (Rodriguez Decl. ¶ 36; Harris Decl. ¶ 46; Mannix ¶ 53.) At that time, all
three individuals agreed that Stephens’s conduct would not change, the operation
of the Lab would be affected, and her employment should be terminated.
(Rodriguez Decl. ¶ 36; Harris Decl. ¶ 46; Mannix ¶¶ 53–54.)
Paredes prepared a termination letter for Acevedo’s signature, which
was reviewed by both HR and the legal department. Acevedo was briefed
specifically on the facts in the termination letter, but was not provided with the
underlying documents, as he relied Mannix’s review of those. (Paredes Decl. ¶ 30;
Acevedo Decl. ¶¶ 34–35; Acevedo Dep. at 133–34; Mannix Decl. ¶ 54.)

17

The termination letter, dated April 29, 2011, identifies several reasons
for the termination of Stephens’s employment, effective April 25, 2011:
1.

The Gallegos Email because Stephens “discussed former employee’s
medical conditions without the employee’s knowledge or permission”
and because Stephens mentioned instructing a SWAFS representative
to remove a job posting although she has “no authority to request that
this job posting be withdrawn and [the] request interferes with and
undermines the Department’s recruitment efforts.”

2.

The Beware Email because Stephens’s comments were “highly
inappropriate” and “disparaging to both your chain of command and
the Austin Police Department.”

3.

Carroll’s resignation as being in large part due to the hostile work
environment Stephens created, as well as Stephens’s untruthful
remark in her email that she left because APD “destroyed her career.”

4.

Stephens’s March 29, 011 email, in which Stephens disclosed to an
APD detective results that had not been administratively approved for
dissemination.

5.

The February 11, 2011 incident in which Stephens left evidence
unsecured.

6.

The January 31, 2011 discovery that Stephens had released a draft
report to an officer without administrative approval, Rodriguez’s
discussion of the matter with Stephens, coupled with Stephens’s
denial at her pre-termination hearing that Rodriguez had brought the
case to her attention.

7.

Stephens calling Rodriguez “evil” and stating she wished Rodriguez
would suffer like she had, which resulted in the January 10, 2011
reprimand.

(Acevedo Dep. Ex. 6.)

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According to Acevedo, based on his briefings with, and the
recommendation of, Mannix, he determined terminating Stephens was appropriate
for the reasons listed in the termination letter he signed. (Acevedo Decl. ¶ 35;
Acevedo Dep. at 51, 58–59, 64–65 & Ex. 6). Specifically, Acevedo testified:
[Stephens] wasn’t fired for the [Gallegos] e-mail in its totality. She
was fired for the parts of the e-mail that are referenced in the
termination letter . . . not the email in its totality . . . It says what we
specifically found to be a violation. Here’s the e-mail that’s
referenced. Here is the part of this e-mail that we find to be
problematic. It doesn’t say any of the rest of it was problematic. It
specifically listed exactly – referenced exactly what was
problematic . . . .
(Acevedo Dep. at 75–77.) Both Mannix and Paredes state that, even without the
Gallegos and Beware Emails, the City had enough documented issues with
Stephens’s conduct to justify termination of her employment. (Mannix Decl. ¶ 55;
Paredes Decl. ¶ 31.)
On April 20, 2011, Stephens sent a letter (“ASCLD Letter”) to Ralph
Keaton, Director of the American Society of Crime Lab Directors (“ASCLD”). In
the letter, Stephens stated she had been disciplined for violating SOPs which she
believed violated state law. She also stated her employment was terminated,
noting “[e]vidently, they received a copy of an email correspondence I had sent to
[Burton] stating that I intended to report these violations of Texas law to the Texas
Forensic Science Commission and ASCLD.” (Resp., Ex. 5.) An independent audit

19

was initiated of the Lab based on the ASCLD Letter, which revealed some
deficiencies within the Lab. (Resp., Ex. 9 at 182–83; id., Ex. 10 at 175.)
Stephens appealed her termination. An independent hearing
examiner, Pamela Lancaster (“Lancaster”), conducted a hearing on June 20, 2011.
In the “Significant Fact Finding” portion of her report, Lancaster found that: (1)
Stephens’s “disciplinary probation warned her to discontinue disrespectful,
unprofessional conduct toward lab staff”; (2) Stephens “displayed disrespectful,
unprofessional behavior toward her supervisors during her probation”; (3)
Stephens “wrote an email critical of APD lab, discouraging anyone from applying”
for a job in the Lab; and (4) Stephens’s “behavior would not change if she was
returned to her job at APD.” (Stephens Dep. at 236 & Ex. 39.)
On July 21, 2011, a Grievance Committee composed of City
employees reviewed the hearing officer’s report and presentations by Stephens and
APD and recommended upholding Stephens’s termination. City Manager Mark
Ott formally upheld the termination of Stephens’s employment on August 18,
2011. (Stephens Dep. at 241–42 & Ex. 40; Mannix Decl. ¶ 57; Acevedo Decl. ¶ 38
& Ex. 2; Paredes Decl. ¶ 32; Mannix Decl. ¶ 57).
II.

Procedural Background
Stephens originally filed this action in the 53rd Judicial District Court

of Travis County, Texas on April 27, 2012. (Dkt. # 1, Ex. 3.) The City and
20

Acevedo removed this action to this Court on July 19, 2012. (Dkt. # 1.) Shortly
thereafter, Stephens amended her complaint in federal court. (“SAC,” Dkt. # 7.)
She named the City, Acevedo, Mannix, and Rodriguez as defendants. (Id. ¶¶ 1–5.)
Stephens’s Complaint alleged that she was terminated as a result of her exercise of
her right to free speech under the First Amendment and on the basis of her race and
sex. (Id. ¶¶ 31–53.) She asserted causes of action under 42 U.S.C. § 1983
(“Section 1983”) against the City and Acevedo and under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (“Title VII”). (Id.) Stephens
sought compensatory and punitive damages, as well as attorneys’ fees. (Id. ¶ 54.)
By order dated December 5, 2012, the Court granted in part the
motion to dismiss by Acevedo and the City, dismissing Stephens’s Title VII claim
in its entirety, her Section 1983 claim against Acevedo in his official capacity, and
her claim for punitive damages against the City and Acevedo in his official
capacity. (Dkt. # 25.) By order dated January 11, 2013, the Court granted
Stephens’s voluntary dismissal of her claims against Mannix and Rodriguez. (Dkt.
# 28.) Accordingly, only Stephens’s Section 1983 claims against the City and
Acevedo in his individual capacity survived.
On May 1, 2013, Stephens filed a Motion to Compel discovery from
Defendants, requesting documents relating to Defendants’ employee disciplinary
records. (Dkt. # 33.) In her Motion, Stephens argued that the information that she
21

sought was relevant to show pretext. (Id. at 5.) On June 14, 2013, Magistrate
Judge Lane denied the request for discovery, finding that evidence of pretext was
irrelevant to Stephens’s claim because of Charles v. Grief, 522 F.3d 508 (5th Cir.
2008). (Dkt. # 38 at 6.)
On December 20, 2013, the City and Acevedo filed a motion for
summary judgment as to the claims remaining against them. They contended
Stephens’s First Amendment claim fails because: (1) to the extent she complains of
any action other than the termination of her employment, she has not identified the
requisite adverse employment action; (2) her speech was not protected activity;
(3) she has not established a causal connection between her speech and the
termination of her employment; (4) their interest in efficiency outweighed
Stephens’s interest in commenting on matters of public concern; and (5) they
would have terminated Stephens’s employment even in the absence of her
protected speech. (Mot. at 20–35.) Acevedo additionally contended: (1) he is
entitled to qualified immunity; and (2) Stephens’s claim against him for punitive
damages fails. (Id. at 35–39.)
On March 31, 2014, Magistrate Judge Mark Lane issued a Report and
Recommendation on Defendants’ Motion for Summary Judgment. (“Rep.,” Dkt.
# 69.) The Magistrate Judge recommended that Defendants’ Motion be granted
because Defendants’ interest in maintaining an efficient workplace outweighed
22

Stephens’s few instances of protected speech and Defendants would have
terminated Stephens’s employment irrespective of her protected speech. (Id. at 32,
35.) Because he concluded that Stephens failed to show a First Amendment
violation, the Magistrate Judge also recommended that any claims against
Defendant Acevedo were barred by qualified immunity and that punitive damages
were unavailable. (Id. at 36.)
On April 14, 2014, Stephens timely filed her objections to the
Magistrate Judge’s Report and Recommendation. (Obj.) Defendants filed a
Response. (“Obj. Resp.,” Dkt. # 72.) At the June 25, 2014 hearing on Stephens’s
Objections, the parties acknowledged that when the Magistrate Judge issued his
ruling on Stephens’s Motion to Compel (dkt. # 38), Charles dictated that pretext
was not a consideration in a First Amendment retaliation case; however, after the
Magistrate Judge’s ruling on the Motion to Compel, but before he issued his ruling
on Defendants’ Motion for Summary Judgment, the Fifth Circuit decided Haverda
v. Hays Cnty., 723 F.3d 586, 595 (5th Cir. 2013), which held that “[a]n employee
can, however, refute that showing by presenting evidence that ‘his employer’s
ostensible explanation for the discharge is merely pretextual.’” 723 F.3d at 592
(quoting Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir. 1991)).
Thereafter, on July 18, 2014, this Court ordered additional discovery
on pretext and ordered the parties to provide supplemental briefing on the pretext
23

question raised by Haverda. The parties submitted supplemental briefing on
August 28, 2014, and September 2, 2014, respectively. (Dkts. # 80, 81.)
LEGAL STANDARDS
I.

Review of a Magistrate Judge’s Memorandum and Recommendation
Any party may contest the Magistrate Judge’s findings by filing

written objections within fourteen days of being served with a copy of the Report
and Recommendation. 28 U.S.C. § 636(b)(1)(C). The objections must specifically
identify those findings or recommendations that the party wishes to have the
district court consider. Thomas v. Arn, 474 U.S. 140, 151 (1985). A district court
need not consider “[f]rivolous, conclusive, or general objections.” Battle v. U.S.
Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987) (quoting Nettles v. Wainwright,
677 F.2d 404, 410 n.8 (5th Cir. 1982), overruled on other grounds by Douglass v.
United States Auto. Ass’n, 79 F.3d 1415 (5th Cir. 1996)).
The Court must conduct a de novo review of any of the Magistrate
Judge’s conclusions to which a party has specifically objected. See 28 U.S.C.
§ 636(b)(1)(C) (“A judge of the court shall make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which
objection is made.”). On the other hand, findings to which no specific objections
are made do not require de novo review; the Court need only determine whether
the Report and Recommendation is clearly erroneous or contrary to law. United
24

States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
II.

Motion for Summary Judgment
Summary judgment is granted under Federal Rule of Civil Procedure

56 when “the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a);
see also Meadaa v. K.A.P. Enterprises, L.L.C., 756 F.3d 875, 880 (5th Cir. 2014).
“Substantive law will identify which facts are material.” Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is only genuine “if the evidence
is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
The moving party bears the initial burden of demonstrating the
absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986). If the moving party meets this burden, the nonmoving party must
come forward with specific facts that establish the existence of a genuine issue for
trial. Distribuidora Mari Jose, S.A. de C.V. v. Transmaritime, Inc., 738 F.3d 703,
706 (5th Cir. 2013) (quoting Allen v. Rapides Parish Sch. Bd., 204 F.3d 619, 621
(5th Cir. 2000)). “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no ‘genuine issue for trial.’”
Hillman v. Loga, 697 F.3d 299, 302 (5th Cir. 2012) (quoting Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
In deciding whether a fact issue has been created, “the court must
25

draw all reasonable inferences in favor of the nonmoving party, and it may not
make credibility determinations or weigh the evidence.” EnerQuest Oil & Gas,
LLC v. Plains Exploration & Prod. Co., 981 F.Supp.2d 575, 584 (5th Cir. 2013)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)).
However, “[u]nsubstantiated assertions, improbable inferences, and unsupported
speculation are not sufficient to defeat a motion for summary judgment.” United
States v. Renda Marine, Inc., 667 F.3d 651, 655 (5th Cir. 2012) (quoting Brown v.
City of Hous., 337 F.3d 539, 541 (5th Cir. 2003)).
DISCUSSION
To establish a claim for employment retaliation related to speech, a
plaintiff-employee must satisfy four elements: “(1) [she] suffered an ‘adverse
employment decision’; (2) [her] speech involved ‘a matter of public concern’; (3)
[her] ‘interest in commenting on matters of public concern . . . outweighs the
[d]efendant’s interest in promoting efficiency’; and (4) [her] 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 [her] 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
26

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.’” Haverda, 723 F.3d at 591 (quoting Coughlin, 946 F.2d at 1157).
“Pretext is more than a mistake on the part of the employer; it is a phony excuse.”
Hudson v. Chi. 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
27

reason for its employment decision has changed substantially over time.”).
I.

The Magistrate Judge’s Report and Recommendation
In his Report and Recommendation, the Magistrate Judge

recommended that Defendants’ Motion for Summary Judgment be granted. First,
he concluded that Defendants were entitled to summary judgment because
Stephens failed to state a prima facie case for First Amendment retaliation. (See
Rep. at 32.) He found that Stephens’s termination qualified as an adverse
employment action, that the Gallegos and ASCLD letters were the only forms of
protected speech, and that there was a causal connection between the Gallegos
letter and Stephens’s termination. However, he concluded that Defendants’
interest in maintaining an efficient workplace outweighed Stephens’s protected
speech. (Id.) Because Stephens failed to meet the fourth element for her First
Amendment retaliation claim, the Magistrate Judge held that Stephens failed to
state a prima facie case and Defendants should be granted summary judgment on
that basis. (Id.)
Second, he found that even if Stephens’s demonstrated a prima facie
case, Defendants were still entitled to summary judgment because they would have
terminated Stephens’s employment irrespective of her protected speech. (Id. at
32–25.) The Magistrate Judge found that Defendants set forth ample evidence that
Stephens would have been terminated absent her protected speech because of her
28

numerous job performance issues and the fact that the disciplinary process leading
to the termination of her employment began at least a month before Stephens
engaged in the speech at issue. (Id.) Additionally, the Magistrate Judge concluded
that Stephens failed to rebut Defendants’ evidence that they would have terminated
Stephens’s employment even in the absence of her protected speech. (Id.) In so
finding, he noted that Stephens failed to produce any evidence that Defendants’
proffered reasons for her termination were pretextual—specifically pointing to her
failure to show any other employee with a similar discipline and work record who
was not terminated.
Finally, the Magistrate Judge found that Defendants were entitled to
qualified immunity and that Stephens’s request for punitive damages was moot
because Stephens failed to show a constitutional violation. (Id. at 36.)
Stephens objects on the basis that (1) the other three emails she
presented are protected speech, (2) the ASCLD letter is causally connected to her
discharge, (3) her interests in protected speech outweighed Defendants’ interest in
efficiency, (4) she had no opportunity to undergo discovery to prove the pretext
issue, and (5) there was a constitutional violation, thus rendering the rulings on
qualified immunity and punitive damages incorrect. She does not object that her
discharge was the sole adverse employment action, that the Gallegos Email and
ASCLD letter were protected speech, or that there was a causal relationship
29

between the Gallegos Email and her termination. Because of the dependent
relationship between Stephens’s objections and the prima facie analysis, the Court
will address Stephens’s objections in the order of the elements necessary to
establish a claim for First Amendment retaliation.
II.

The Prima Facie Case
A.

Adverse Employment Action
Because Stephens does not object to the Magistrate Judge’s finding

that Stephens’s discharge is the adverse employment action at issue, the Court
reviews the finding for clear error. The Court agrees that Stephens’s discharge is
the only adverse employment action that occurred in her case and that is actionable
in the First Amendment context.
B.

Protected Speech
Stephens objects to the Report and its findings related to the “Burton

Email,” “DPS Email,” and “Beware Email,” claiming that the Magistrate Judge
erred in finding these writings to be unprotected speech. (Obj. at 11.) Stephens
does not proffer any additional argument to support her objection.
As a preliminary matter, Stephens’s general objection fails to pass
muster. The Western District’s Local Civil Rules, which have the force of law, see
Hollingsworth v. Perry, 558 U.S. 183, 191 (2010), require that the “written
objections . . . specifically identify the portions of the proposed findings,
30

recommendations or report to which objection is made and the basis for such
objections.” W.D. Tex. Assignment of Duties to United States Magistrate Judges
Rule 4(b); see also Macort v. Prem, Inc., 208 F. App’x. 781, 785 (11th Cir. 2006)
(holding that merely reciting language from a previous order of the court or failing
to set forth the applicable law is not a specific objection to anything in the report
and recommendation that would trigger de novo review by the district court). It is
insufficient to merely “object.”
However, even entertaining Stephens’s general and non-specific
objection, neither the Burton Email, the DPS Email, nor the Beware Email qualify
as protected speech. A public employee’s speech is only constitutionally protected
if it “addresses a matter of ‘public concern.’” Harris ex rel. Harris v. Pontotoc
Cnty. Sch. Dist., 635 F.3d 685, 692 (5th Cir. 2011) (quoting Connick v. Myers,
461 U.S.138, 147 (1983)). “Matters of public concern are those which can be
‘fairly considered as relating to any matter of political, social, or other concern to
the community.’” Branton v. City of Dall., 272 F.3d 730, 739 (5th Cir. 2001)
(quoting Connick, 461 U.S. at 146).
Notwithstanding this principle, even when a public employee’s speech
relates to a topic of public interest, as is often the case in the public employment
setting, it is not considered to be on a “matter of public concern” if the speaker
spoke as an employee rather than as a citizen. Harris, 635 F.3d at 692; see also
31

Connick, 461 U.S. at 147. In other words, speech that is purely on a matter of
personal interest in an employment decision is spoken as an employee and is not
constitutionally protected. Benningfield v. City of Hous., 157 F.3d 369, 375 (5th
Cir. 1998); Connick, 461 U.S. at 147–48. Nevertheless, “[t]he existence of an
element of personal interest on the part of an employee in the speech does not
prevent finding that the speech as a whole raises issues of public concern.” Dodds
v. Childers, 933 F.2d 271, 273 (5th Cir. 1991). Speech that touches both matters of
public and personal interest—so-called “mixed speech”—remains protected by the
First Amendment as long as it was made “predominantly ‘as a citizen.’” Harris,
635 F.3d at 692 (quoting Dodds, 933 F.2d at 273).
In mixed speech cases, courts must analyze the content, form, and
context of the speech to determine whether it was made predominately as a citizen.
See Teague v. City of Flower Mound, Tex., 179 F.3d 377, 382 (5th Cir. 1999).
“The content, form, and context of a given statement, as revealed by the whole
record” determines whether a plaintiff spoke primarily as a citizen on a matter of
public concern or as an employee on a matter of personal interest. Connick, 461
U.S. at 147–48; see also Moore v. City of Kilgore, 877 F.2d 364, 370 (5th Cir.
1989) (holding that the “content, form, and context” factors “must be considered as
a whole package, and [their] significance . . . will differ depending on the
circumstances of the particular situation.”). The Fifth Circuit has recognized
32

“three reliable principles” derived from its case law regarding whether the content
of a public employee’s speech is made as a citizen on a matter of public concern:
First, the content of the speech may relate to the public concern if it
does not involve solely personal matters or strictly a discussion of
management policies that is only interesting to the public by virtue of
the manager’s status as an arm of the government. If releasing the
speech to the public would inform the populace of more than the fact
of an employee’s employment grievance, the content of the speech
may be public in nature.
Second, speech need not be made to the public, but it may relate to the
public concern if it is made against the backdrop of public debate.
And third, the speech cannot be made in furtherance of a personal
employer–employee dispute if it is to relate to the public concern.
Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 372 (5th Cir.
2000) (citing cases), abrogated on other grounds by Cuvillier v. Taylor, 503 F.3d
397, 401 (5th Cir. 2007); see also Durrett v. Vargas, 250 F.3d 743, at *3 (5th Cir.
2001) (noting that these factors are applicable within the content prong). In
accordance with these precepts, the Fifth Circuit has specifically noted that speech
regarding “internal personnel disputes and working conditions” will not ordinarily
involve the public concern. See Alexander v. Eeds, 392 F.3d 138, 142 (5th Cir.
2004) (quoting Branton, 272 F.3d at 739).
1.

Burton Email

First, Stephens objects to the Magistrate Judge’s finding that the
Burton email was not protected speech. Stephens contends that the Burton email
33

constitutes protected speech because it contains allegations of corruption and
impropriety within APD and challenges to the integrity and reliability of the Lab,
which are matters of public concern. (Dkt. # 62 ¶ 57.) She emphasizes that she
sent the email from her personal work account to a non-supervisor while she was
off-duty, and the matters at issue “are not related to [her] job as a chemist.” (Id. ¶
56.) Defendants counter that, at its base, the Burton Email is a complaint about the
decision to uphold her suspension and is therefore in furtherance of a personal
employer–employee dispute. (Dkt. # 64 at 8.)
Upon review, the first four paragraphs of the Burton email contain
descriptions of Stephens’s personal dissatisfaction with the results of her
suspension hearing and the alleged retaliation that she experienced, followed by a
defense of her qualifications. (See Resp., Ex. 4.) These paragraphs of the email
are not protected speech; they are purely in furtherance of a personal employer–
employee dispute, which is not content related to the public concern. See
Kennedy, 224 F.3d at 372.
In contrast, the fifth and sixth paragraphs present a closer question.
They read:
Who do I appeal to when I tell you that something wicked is going on
at APD when they violate their own policies and hire un-qualified
administrators. Clearly, the job descriptions of my administrators
requires a college degree. When Mr. Bill Gibbens, Forensic Science
Manager was promoted in 2002, he did not possess a college degree.
In 2005, when the laboratory was inspected, we took a serious hit
34

because he was not qualified. Mr. Ed Harris, the Technical Services
Bureau Chief, suggested that Mr. Gibbens obtain some sort of degree.
Mr. Gibbens purchased some sort of degree off the internet, and I
assume the citizens of Austin paid for much of that. However, to this
day, our assistant administrator, Mr. Jerry Pena, does not hold any sort
of college degree and this is clearly a violation of the requirements of
his position.
I have a college degree and have been a scientist for almost thirty
years. It is crazy to me that the crime laboratory could be run by
anyone other than a scientist. APD prides themselves on their
“model” crime lab, but there are several cracks in this facade. As long
as they are able to continue punishing good employees and writing
policies that violate the law, and get the backing of the City
Manager’s office, these attrocities [sic] will continue.
(Resp., Ex. 4.) These paragraphs constitute mixed speech. Stephens speaks as an
employee, since she is discussing matters related to her employment. However,
she also speaks as a citizen—writing while off-duty from her own personal email
account. (Id.) Therefore, the Court analyzes whether, under the content–form–
context test, Stephens was speaking predominately as a citizen or employee.
a.

Content

The content of Stephens’s speech weighs in favor of holding that she
did not speak on a matter of public concern. The paragraphs of the email at issue
discuss the qualifications of Stephens’s supervisors, whom she alleges are
unqualified to lead a crime lab. (Id.) Following the Fifth Circuit’s
pronouncements, the Court finds that her comments are essentially “a discussion of
management policies that are only of interest to the public by virtue of the
35

manager’s status as an arm of the government.” Kennedy, 224 F.3d at 372.
Gibbens’s qualifications would be of no public interest but for his employment at
the agency. While his qualifications may or may violate the requirements of the
position, the requirements are pursuant to internal city polices that are not of broad
public concern. Her statements are similar to allegations of favoritism, which the
Fifth Circuit maintains are not a public concern. Moore, 871 F.2d at 551.
Second, although Stephens has alleged that there was news interest in
the issue around this time, she has not alleged or presented sufficient evidence that
her comments were made against the backdrop of public debate. In support of her
argument, Stephens claims that “[she] was contacted by a media member just
weeks before she was fired, inquiring about [her] job status and the status of the
APD crime lab.” (Resp. ¶ 50.) Stephens’s affidavit, upon which she relies for the
above statement, is more circumscribed in its description: her affidavit states that a
newspaper reporter contacted her in late March “regarding the Lab and the validity
of DWI cases in Travis County.” (Resp., Ex. 8 ¶ 10.) Stephens also points to
Acevedo’s testimony that “in his opinion there has been media coverage about the
drug analysis in the crime lab.” (Dkt. # 65 ¶ 2.)
Stephens is correct that “[t]he very fact of newspaper coverage [of the
matter discussed by the employee] indicates that ‘the public was receptive and
eager to hear about’ [the matter].” Salge v. Edna Indep. Sch. Dist., 411 F.3d 178,
36

189 (5th Cir. 2005) (internal quotation marks omitted) (quoting Kenendy, 224 F.3d
at 371). However, Stephens’s allegations that a newspaper reporter contacted her
“regarding the Lab” and that there was media coverage about the drug analysis is
not specific enough to show that the media was particularly interested in the sort of
“misconduct” that Stephens alleges. Her allegations of media interest are
insufficient to overcome the other factors of the content analysis, which indicate
that Stephens spoke as an employee on a matter of personal interest.
Third, Stephens’s speech is in furtherance of the personal employee–
employer dispute in which she was engaged with the Lab. There is no evidence
that her speech is motivated by a concern to expose the Lab’s alleged misconduct
to the public: in the context of the other paragraphs of her email, her statements are
fuel to justify her dissatisfaction with the process that she was given. Therefore,
the content factor weighs in favor of holding that Stephens did not speak on a
matter of public concern.
b.

Form

The Court finds that the form factor does not weigh in favor of either
party. As Stephens points out, Stephens sent the email while off-duty from her
personal account. Ordinarily, this would weigh toward a finding that she was not
speaking as an employee on a matter of personal interest, at least with regard this
factor. See Bradshaw v. Pittsburg Indep. Sch. Dist., 207 F.3d 814, 817 (5th Cir.
37

2000) (finding that memos signed in the plaintiff’s professional capacity and
written on school letter head favored a conclusion that plaintiff drafted the
documents in her capacity as a public employee). However, it is relevant that
Stephens affirmatively initiated the speech without any prompting. See Salge, 411
F.3d at 189 (“The fact that an employee responds to an invitation to speak rather
than initiating the speech weighed heavily in favor of finding speech on a matter of
public concern.”). Additionally, Stephens addressed her speech to a city employee
who was part of the Human Resources Department. “When a public employee
raises complaints or concerns up the chain of command at his workplace about his
job duties, that speech is undertaken in the course of performing his job.” Davis v.
McKinney, 518 F.3d 304, 313 (5th Cir. 2008). Therefore, the form prong does not
favor either party.
c.

Context

The context of the email indicates that Stephens was speaking as an
employee in her personal interest. As discussed above, the email is structured as a
complaint to Human Resources about the results of Stephens’s disciplinary
hearing, which Stephens received two days earlier. In her email, Stephens
forwards the final disposition of her hearing. Additionally, she speaks to a
one-member audience: Burton.

38

The allegations that she makes in the two paragraphs at issue arise
from an interest in addressing what she believes is a miscarriage of justice in her
personal employment hearing, rather than a general interest in exposing corruption
in the Lab. Moreover, the email is part of a series of emails that she wrote after
receiving the final decision from her disciplinary hearing. (Dkt. # 64 at 7.) Given
these facts, the context factor weighs in favor of finding that Stephens was
speaking as an employee in her personal interest.
Accordingly, the Court finds that the Burton Email did not constitute
protected speech.
2.

DPS Email

Next, Stephens objects that the DPS email constitutes protected
speech. The DPS email reads:
I would like you to remove the APD job posting from the SWAFS
website. APD is a toxic work environment. As a distinguished
member of your organization, I can tell you first hand that these
administrators at APD have done everything in their power to destroy
my character, reputation, and career by reprimanding me for
following the laws in the State of Texas. I have the backing of DPS,
the legal community (including prosecutors and defense attorneys),
MADD, and fellow forensic scientists. I would hate for anyone to
accept a position with this department thinking that they will be
treated fairly by this administration. I intended to bring my
supervisor, Gloria Rodriguez up on ethics charges for lying under oath
and bolstering her credentials. SWAFS should post a warning to
every ethical forensic scientists that this is not an organization worthy
of SWAFS support. In addition, they have destroyed the careers of
many other fine scientists including Cicely Hamilton, Laura Carroll,
and Jenny LaCoss.
39

(Resp., Ex. 3.)
Stephens contends that the DPS email constitutes protected speech
because it alleges evidence of corruption and malfeasance within APD, which is a
matter of public concern. (Dkt. # 62 ¶ 53.) She emphasizes that the email was sent
from her private email account while she was off-duty and that it did not relate to
her job as a chemist. (Id.) Defendants counter that the email focuses on the
grievance hearing and that the statements are “an airing o[f] her private dispute
with APD.” (Dkt. # 64 at 8.)
A mixed-speech analysis is again required, since Stephens speaks
off-duty from a private email account, but speaks about issues related directly to
her employment.
a.

Content

The content of the email indicates that Stephens spoke as an employee
on a matter of personal interest. The bulk of the content in the DPS Email involves
personal matters and management policies “only interesting to the public by virtue
of the manager’s status as an arm of the government.” See Kennedy, 224 F.3d at
372. Stephens’s claims that APD is a toxic work environment, that administrators
have destroyed her career and the careers of other scientists, and that applicants
should be wary of the Department treating them fairly. These are all general
statements that stem from Stephens’s internal personnel dispute. The generality of
40

the language fails to “inform the populace of [any] more than the fact of [her]
employment grievance.” See Kennedy, 224 F.3d at 372.
Arguably, the statement that Rodriguez lied under oath could be of
public concern. However, the alleged perjury occurred during Stephens’s
grievance hearing; Stephens’s concern about Rodriguez’s conduct arises from her
dissatisfaction with the results of the hearing, not from a general concern to blow
the whistle on the Department’s conduct. (See Resp., Ex. 1 at 2.) Stephen’s
statements regarding Rodriguez constitute speech made in furtherance of a
personal employer–employee dispute, which does not relate to the public concern.
See Kennedy, 224 F.3d at 372.
Finally, Stephens’s arguments that her comments were made with the
backdrop of public debate are unavailing. Stephens advances the same arguments
in support of public debate here that she advanced with regard to the Burton email,
so the Court does not reiterate them here.
b.

Form

The form of the email does not favor either side of the public/private
analysis. As Stephens correctly notes, she wrote the email from her personal email
account while off-duty, which indicates that she may have written as a public
citizen, rather than an employee. See Bradshaw, 207 F.3d at 817. However, like
in the Burton Email, Stephens affirmatively initiated this speech—she was not
41

merely responding to an inquiry. See Salge, 411 F.3d at 189. Therefore, the form
consideration does not weigh on either side.
c.

Context

Similarly, the context of the DPS Email weighs in favor of finding
that Stephens spoke as an employee on a matter of personal interest. The email
arises out of her personal employee-employer dispute with the Department. It was
motivated by the results of the hearing, which Stephens received the day before.
Stephens’s references to the support of various entities and her belief that
Rodriguez was dishonest during her grievance hearing both relate directly to the
grievance hearing at issue.
Additionally, although her audience is a state employee who is outside
of the city, the purpose of her email is to remove a job posted by her employer. In
this context, her speech appears to be focused on her internal dispute with the
Department, rather than a matter of concern to the community. See Branton, 272
F.3d at 739.
Having weighed the content, form, and context of the DPS Email, the
Court concludes that Stephens spoke as an employee on a matter of personal
interest, and the email is therefore unprotected.

42

3.

Beware Email

Third, Stephens objects that the Beware Email constitutes protected
speech. The Beware Email reads:
BEWARE!! These people will do anything to destroy your career.
Laura Carroll has resigned under the strain and they have done
everything in their power to destroy my career as a Technical
Supervisor as well.
(Resp., Ex. 2.)
Stephens contends that the Beware email constitutes protected speech
because it was sent to people outside of APD to warn of malfeasance within APD
and because it was not made within the scope of her official job duties. (Dkt. # 62
¶ 52.) Defendants counter that email is personal, and constitutes a mere “attempt
to hinder APD from hiring someone to fill what she believed was her position.”
(Dkt. # 64 at 9.)
This email is purely in furtherance of an employer–employee dispute.
Stephens does not make any specific allegations of misconduct or malfeasance.
Moreover, none of her general statements are specific enough to be of interest to
the public in determining whether the Department was involved in misconduct.
The email constitutes “speech that is purely on a matter of personal interest in an
employment decision” and is therefore “spoken as an employee and is not
constitutionally protected.” See Benningfield, 157 F.3d at 375.

43

Even if the Court were to assume that the Beware Email presented a
mixed speech situation, it nevertheless fails the content–form–context test and is
unprotected.
First, the content of the email weighs in favor of finding that the
speech was not on a matter of public concern. The email does not cast light on any
public malfeasance; it involves very broad allegations that stem from Stephens’s
internal personnel dispute. The language “does not disclose any specific evidence
of corruption, impropriety, malfeasance, or misbehavior,” nor does it blow the
whistle on any illegal action by the Department. See Willaims v. Dall. Indep. Sch.
Dist., No. 3:04-cv-1386, 2005, WL 2317985 (N.D. Tex. Sept. 21, 2005) (citing
Branton, 272 F.3d at 739; Brawner v. City of Richardson, Tex., 855 F.2d 187,
191–192 (5th Cir. 1988)), aff’d, 480 F.3d 689 (5th Cir. 2007). The generality of
the language fails to “inform the populace of [any] more than the fact of [her]
employment grievance.” See Kennedy, 224 F.3d at 372. In essence, the content of
the email is an ad hominem attack directed against the Defendants presenting only
general complaints from a dissatisfied employee.
Similarly, the form of the email indicates that Stephens spoke as an
employee on a matter of personal interest. Although she sent the email from her
personal account, she received the email that she forwarded through her work
account, and she then forwarded it to various government employees throughout
44

the state. (See Resp., Ex. 2 at 1.) See also Bradshaw, 207 F.3d at 817 (finding
significant in form analysis that the plaintiff signed the memos with her title and
printed them on official letterhead). Moreover, she affirmatively initiated this
speech—she was not merely responding to an inquiry. See Salge, 411 F.3d at 189.
Finally, the context of the email also indicates that Stephens spoke as
an employee on a matter of personal interest. Stephens wrote this email two days
after the City Manager upheld her suspension. (Dkt. # 64 at 7.) It was part of a
series of emails that Stephens wrote following that decision, all of which arose
from her perception that the hearing disposition was unfair. (Id.; see also Resp.,
Ex. 1 at 1.)
Based on the content, form, and context of the Beware Email, the
Court concludes that Stephens spoke as an employee on a matter of personal
interest, and the email is therefore unprotected.
4.

Gallegos Email

Because Stephens does not object to the finding that the Gallegos
Email was protected speech, the Court reviews the conclusion for clear error. The
Court agrees with the Magistrate Judge that the email contains allegations of
official misconduct and public malfeasance, albeit intertwined with an account of
Stephens’s interpersonal discipline, as well as a fellow employee’s health and
purported addiction. Relying on the mixed speech doctrine, the Court agrees that
45

the Gallegos email constitutes protected speech, at least as to the portions that
address public malfeasance and official misconduct.
5.

ASCLD Letter

Again, the Court reviews the Magistrate Judge’s finding that the
ASCLD letter constituted clear error, since there are no objections. The Court
agrees that, because Defendants do not dispute that the ASCLD Letter constituted
protected speech, it is properly considered as such.
C.

Causal Connection
First, Stephens makes a general, non-specific objection to the

Magistrate Judge’s findings that the ASCLD Letter was not casually connected to
the adverse employment action. (See Obj. at 11 (“Plaintiff objects to the Report
and its findings related to the “ASCLD Letter” to the extent that the Report
concludes that the speech as not causally connected to the adverse employment
action.”).) As noted earlier, this objection is insufficient to warrant de novo
review. See W.D. Tex. Assignment of Duties to United States Magistrate Judges
Rule 4(b).
Nevertheless, even if this Court were review the matter de novo, the
Court finds that the ASCLD Letter was not causally connected to Stephens’s
termination. Stephens’s Response to Defendants’ summary judgment argued that
the ASCLD Letter’s “close proximity to the termination is enough show
46

causation.” (Resp. at 25.) However, the Court fails to see how the ASCLD
Letter—sent on April 20, 2011—could have been a substantial motivating factor in
Stephens’s termination when APD had already decided to initiate termination
proceedings by giving her a pre-termination notice and placing her on
administrative leave (by removing her from the premises) nine days earlier on
April 11, 2014. Moreover, the ASCLD Letter was not mentioned in the list of
reasons Acevedo provided on Stephens’s termination letter. The Court has
searched in vain for any passage wherein anyone in APD cited the ASCLD Letter
as a reason—let alone a substantial motivating reason—for Stephens’s termination.
The ASCLD Letter is not casually connected to Stephens’s termination.
Second, because Stephens does not object to the finding that there is a
fact question as to whether the Gallegos Email was causally connected to her
termination, the Court reviews the conclusion for clear error. The Court agrees
that the evidence showing that Acevedo’s decision to terminate Stephens was
based on Mannix’s description and opinion of Stephens’s conduct—and that
Mannix was fully aware of the contents of the Gallegos email. Therefore, the
Court agrees that there remains a fact question as to whether the Gallegos Email is
causally connected to Stephens’s discharge.

47

D.

Interest in Efficiency
Unlike the aforementioned objections, Stephens’s objection to the

Magistrate Judge’s finding that APD’s interest in efficiency outweighed Stephens’s
First Amendment interest in her speech is entitled to a de novo review by this
Court. She specifically objects to the Report because “the Report did not address
relevant facts and law” and “a fact issue exists as to whether Defendants’ interest
in efficiency outweighs Plaintiff’s interest.” (Obj. at 1.)
As the Magistrate Judge noted, even if a public employee speaks on a
matter of public concern and that speech is casually connected to the adverse
employment action, a public employee’s speech is not protected unless the
employee’s interest in expressing him or herself on the matter outweighs the
government’s interest in promoting the efficiency of its public services. See
Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968). To resolve whether the
government’s interest in efficiency outweighs the employee’s First Amendment
interests, the court performs a Pickering balancing test, which “in reality is a
sliding scale or spectrum upon which ‘public concern is weighed against
disruption’” to the government’s interest in efficient operation. Vojvodich v.
Lopez, 48 F.3d 879, 885 (5th Cir. 1995) (quoting Click v. Copeland, 970 F.2d 106,
112 (5th Cir.1992) (internal quotations omitted)). For purposes of the Pickering
balancing test, “[t]he more central a matter of public concern is to the speech at
48

issue, the stronger the employer’s showing of counter-balancing governmental
interest must be.” Coughlin, 946 F.2d at 1157 (citing cases). The test encompasses
several factors:
(1) the degree to which the employee’s activity involved a matter of
public concern; (2) the time, place, and manner of the employee’s
activity; (3) whether close working relationships are essential to
fulfilling the employee’s public responsibilities and the potential
effect of the employee’s activity on those relationships; (4) whether
the employee’s activity may be characterized as hostile, abusive, or
insubordinate; and (5) whether the activity impairs discipline by
superiors or harmony among coworkers.
Jordan v. Ector Cnty., 516 F.3d 290, 299 (5th Cir. 2008).
The Magistrate Judge found that Defendants had submitted significant
evidence of disruption and that Stephens’s First Amendment interest in her speech
was outweighed by her disruptive and insubordinate behaviors in the Lab. (Rep. at
29–32.) He relied on Stephens numerous confrontations with her supervisor,
Rodriguez, including her emails describing Rodriguez as “evil.” (Id. at 31.) He
also relied on Stephens’s influence on Carrolls’s resignation and Stephens’s email
discussion about Carrolls’s health issues. (Id.)
Before addressing Stephens’s objections, the Court wishes to clarify
the relevant considerations under a Pickering analysis because it appears that
certain parts of the Report and the parties’ arguments in support and opposition to
the Report are evaluating Defendants’ interest in efficiency in relation to
Stephens’s entire disruptive conduct—as opposed evaluating Defendants’ interest
49

in relation to Stephens’s protected speech activity. (See Rep. at 31 (relying on
Stephens confronting Rodriguez on more than one occasion accusing her of being
evil); id. at 32 (relying on Stephens’s disregard for Lab policies).) The relevant
consideration under Pickering examines “how the speech at issue affects the
government’s interest in providing services efficiently.” Kinney v. Weaver, 367
F.3d 337, 362 (5th Cir. 2004); see also De La Garza v. Brumby, No. 6:11-CV-37,
2013 WL 754260, at *4 (S.D. Tex. Feb. 27, 2013) (“[U]nder the Pickering inquiry,
it is the associational or speech activity that must give rise to the workplace
disruption.”). As such, Defendants’ interest in maintaining a harmonious and
efficient workplace must be weighed in relation to Stephens’s protected speech
activity.
With that consideration in mind, the Court turns to Stephens’s
objections. Stephens argues that the Magistrate Judge erred by concluding that
Defendants’ interest in the efficient provision of public services outweighed her
First Amendment interests. She contends that Defendants’ evidence did not
demonstrate a morale issue sufficient to provide a finding that Defendants’ interest
in efficiency outweighed Stephens’s interest in her speech. She argues that there
was no real disruption because (1) Rodriguez found her behaviors to be nonobjectionable until the day of Stephens’s removal from the Lab’s premises,
(2) Gibbens was only concerned that the Gallegos Email made the Lab “look bad,”
50

and (3) Stephens was not a supervisor, she did not work closely with any other
employee, and her statements were not offensive to any group. (Obj. at 1–5.)
Defendants counter that Rodriguez’s assessment does not mitigate the reasonable
likelihood of disruption, Stephens is misquoting Gibbens’s testimony, and
Stephens’s lack of supervisory status or non-offensive statements is not dispositive.
1.

Rodriguez’s Testimony

Stephens predominantly argues that the Magistrate Judge did not
adequately credit certain testimony by Rodriguez. According to Stephens, “[t]he
Report does not address the fact that Rodriguez, Stephens’s direct supervisor, and
the one with the most knowledge about the morale of the Lab and its employees,
did not believe that the morale in the Lab or any insubordination on the part of
Stephens necessitated termination until April 11, 2011”—the day of Stephens’s
removal from the Lab’s premises. (Obj. at 3.) Stephens relies on two portions of
Rodriguez’s deposition testimony.
First, she cites pages 38 through 40, which provide in relevant part:
Q. And so you didn’t make the decision that Ms. Stephens should be
terminated until April of 2011, right?
....
A.

I didn’t make -- since I can’t make the decision that Ms.
Stephens should be terminated, I was asked my opinion of
whether or not she should be terminated. My final opinion on
that, yes was in April.

51

Q.

That’s when you formed that opinion, was the day she was
escorted out of the building?

A.

Yes.

Q.

And so if you were going -- because you were working on a
corrective action report from Ms. Stephens on April 7, 2011.
Do you remember doing that?

A.

Without seeing the corrective action report that I was writing, I
know I was writing -- was in the process of writing one. I don’t
know the exact date that I was writing it on.

....
Q.

Would you work on drawing up a corrective action report for
someone who was terminated?

A.

I would have to do a corrective action report whether or not
somebody was terminated if it reflected case work, yes.

Q.

And so you don’t remember what day Ms. Stephens was asked
to leave?

A.

I know it was the early part of April, but the exact date I don’t
recall anymore.

Q.

And what was the precipitating factor that caused you to change
your opinion on whatever day she was escorted out of the
building from her not needed to be terminated to her needing to
be terminated?

A.

I want to say that it was her insubordination towards me that
day and in particular what I considered a verbal threat when she
says “may God have mercy on your soul.”

(Rodriguez Dep. 38:19–40:18.)
Second, Stephens cites pages 165 through 166, wherein Rodriguez
explained that on April 7, 2011, she did not think Stephens should be terminated;

52

at that point, she was only drafting a reprimand for corrective, as opposed to
disciplinary, action:
Q.

Okay. And you still on this day, on April 7, 2011, at 3:33, you
still had not formed the opinion that Ms. Stephens should be
terminated, personally, yourself?

A.

Correct. If I had I wouldn’t have gone through the trouble of
writing the corrective action report or the reprimand. Why
write the reprimand if I want her out? A reprimand means just
fix the problem and we can go forward.

(Id. 165:18–166:1.) Based on these two citations to Rodriguez’s deposition
testimony, Stephens asserts that because Rodriguez did not find her behavior to
warrant termination, it must not have been sufficiently disruptive to warrant a
finding in favor of Defendants in the Pickering analysis. (Obj. at 2–3.) In other
words, Stephens contends that unless—and until—her disruption warranted
termination, it was not disruption worthy of Pickering.
There are two problems with Stephens’s argument. First, it
incorrectly assumes that Stephens’s other conduct—conduct prior to sending the
Gallegos Email—is a relevant consideration in the Pickering balancing test.
However, as discussed above, only the protected speech that is causally connected
to the adverse employment action—in this case, the Gallegos Email—gives rise to
workplace disruption. See Kinney, 367 F.3d at 362. As such, whether Stephens’s
other behaviors were or were not disruptive is irrelevant. It is only whether the
Gallegos email caused or was reasonably likely to cause disruption.
53

Second, even accepting Stephens’s argument that her previous
disruption was insignificant because it did not merit termination, the Magistrate
Judge correctly reminded Stephens that “an employer may ‘take action before a
risk ripens into an actual workplace disruption.’” (Rep. at 30 (emphasis added)
(citing Kinney, 367 F.3d at 364).) This point is well-established. See Connick,
461 U.S. at 168 (“[A]n employer need not wait until the destruction of working
relationships is manifest before taking action.”); accord Salge, 411 F.3d at 192
(“[A]n employer may justifiably discharge an employee on a belief that the
employee’s speech has caused or will cause significant disruption to the
workplace.”); U.S. Dep’t of Justice, I.N.S., Border Patrol, El Paso, Tex. v. Fed.
Labor Relations Auth., 955 F.2d 998, 1007 (5th Cir. 1992) (“[I]t is not necessary
‘for an employer to allow events to unfold to the extent that the disruption of the
office and the destruction of the working relationship is manifest before taking
action.’” (quoting Connick, 461 U.S. at 168)).
Accordingly, Stephens’s arguments that the Magistrate Judge
improperly overlooked Rodriguez’s testimony are unpersuasive.
2.

Gibbens’s Testimony

Stephens argues that the Magistrate Judge did not address the cited
testimony of Gibbens, which allegedly revealed that he was not concerned about
morale or insubordination. (Obj. at 4.) According to Stephens, Gibbens was only
54

concerned about the Gallegos Email because “it made the Lab look bad,” might
incite Gallegos to step “outside of her realm as an auditor,” and might prompt
Gallegos to “investigate the Lab.” (Id.) Presumably, Stephens contends that
because Gibbens was only concerned with the effect that the Gallegos might have
had on Gallegos in relation to her role as the Lab’s auditor, Gibbens did not find
any disruption.
However, Stephens’s argument rests on a logical fallacy. Just because
Gibbens was concerned that the Gallegos Email would prompt Gallegos to step
outside her realm as an auditor does not mean that he did not find that the Gallegos
Email would not have reasonably led to disruption within the Lab. The two
concerns are not mutually exclusive.
3.

Stephens’s Lack of Supervisory Power; Statements Were Not
Profane or Offensive to Particular Group

Stephens also contends that because she was not a supervisor and her
statements were not profane or directed at a particular group, there was no real
disruption to merit finding that Defendants’ interest in efficiency outweighed her
First Amendment interests. (Obj. at 2.)
Defendants correctly point out that Stephens’s lack of supervisory
status is entitled to little consideration because “if supervisory responsibility were
required, the only persons who could ever have First Amendment claims against
their employers would be supervisory employees.” (Obj. Resp. at 5.) Defendants
55

also correctly highlight that solely because Stephens’s comments in the Gallegos
email were not profane or racially motivated, that does not mean that that were not
offensive on other bases. (Id. at 7.)
4.

Assumptions and Conflicting Evidence

Stephens also argues that the Magistrate Judge’s Report “agrees with
the conclusory statements of Leticia Paredes, head of APD HR” and that “this case
should not be dismissed on assumptions.” (Obj. at 4.) Similarly, she asserts that
“[w]hile the Defendants maintain that they were concerned about the email’s
[e]ffect on morale and that Plaintiff was being disruptive, there is conflicting
evidence.” (Id. at 4–5.) She relies on Gustafson v. Jones, 290 F.3d 895 (7th Cir.
2002), wherein the Seventh Circuit held that “Pickering balancing is not an
exercise in judicial speculation. While it is true that in some cases the undisputed
facts on summary judgment permit the resolution of a claim without a trial, that
means only that the Pickering elements are assessed in light of a record free from
material factual disputes.” (Id. at 5 (quoting Gustafson, 290 F.3d at 909).)
Although presented from a different perspective, this argument merely
restates Stephens’s previous argument that absent actual proof of disruption in the
Lab, Defendants’ interest in maintaining a harmonious atmosphere is not
substantial enough to outweigh First Amendment interests. Again, however, this
argument misstates the law because an employer can terminate an employee’s
56

employment if that employee’s speech was reasonably calculated to cause
workplace disruption. See, e.g., Connick, 461 U.S. at 168; Salge, 411 F.3d at 192;
Kinney, 367 F.3d at 364; U.S. Dep’t of Justice, I.N.S., Border Patrol, El Paso,
Tex., 955 F.2d at 1007.
5.

De Novo Review

Irrespective of Stephens’s unpersuasive arguments, a de novo review
of Defendants’ evidence reveals that the protected speech identified in the Gallegos
Email was likely to cause workplace disruption such that Defendants’ interest in
maintaining a harmonious and efficient workplace outweighed Stephens’s interests
in her speech. The Gallegos Email revealed private, medical information about a
co-worker:
The young chemist who was assigned the breath alcohol duties,
resigned under pressure. She became addicted to Xanax and lost so
much weight, that she was diagnosed “aneorexic.” When she asked to
be returned to the drug lab, they wouldn’t let her and her husband
made her resign in order to rest and regain her health. They destroyed
this poor little girl’s career!
(Gallegos Email at 1–2.) Mannix cited this portion of the Gallegos Email as the
basis of Stephens’s termination because it impermissibly “discussed a former
employee’s medical conditions without the employee’s knowledge or permission.”
(Mannix Decl. ¶ 49.) This Court agrees with the Magistrate Judge that it has “no
trouble concluding that Defendants’ interest in limiting an employee’s speech
regarding private health information outweighs any First Amendment protection of
57

such speech.” (Rep. at 32 (citing Rankin v. McPherson, 483 U.S. 378, 388 (1987)
(including harmony among co-workers as a factor to consider in balancing
employer’s interest in workplace efficiency)).)
The Gallegos Email also disparaged the Lab by describing its
employees as “truly evil” and remarking that “they have destroyed the careers of so
many fine people. But, truly . . . they don’t care.” (Gallegos Email at 2.) Harris
found these statements in the Gallegos Email to be “insubordinate and improper.”
(Harris Decl. ¶ 44.) The Gallegos Email also mentioned that Stephens requested
that “Brandon” remove the job posting on the SWAFS website. (Gallegos Email at
3.) Mannix testified that this statement “interfered and undermined the
Department’s recruiting efforts.” Defendants’ evidence sufficiently demonstrated
that these statements were likely to bring professionalism of APD and the Lab into
disrepute. See Nixon, 511 F.3d at 499 (holding that the reputation of a police
department is a legitimate and substantial government concern and thus it was
reasonable for a police department to believe that a police officer’s newspaper
columns and the caustic remarks therein would impair the proper performance of
its functions).
Contrary to Stephens’s arguments that disruption did not occur and
was not likely to occur, it is hard to imagine that revealing a fellow employee’s
purported addiction to Xanax and anorexia diagnosis as well as describing a law
58

enforcement agency employer as “evil” could constitute non-disruptive speech. As
such, Defendants’ interest in maintaining an efficient, disciplined, and harmonious
workforce is high.
The Court weighs this interest against Stephens’s First Amendment
interests. In her Response to Defendants’ Motion for Summary Judgment,
Stephens contended that her statements in the Gallegos Email were “of great
interest to the public.” (Resp. at 28.) She claimed that the misgivings she
complained of in the Email had “social value” and should be given “extra
protection because of the nature of the wrongdoing alleged.” (Id.) However, the
portions of her email that discuss issues that would be protected—statements about
matters of public concern outside of her discussion of internal personnel disputes—
are limited in their public value.
In sum, the Court agrees that Defendants’ interest in an efficient,
harmonious, and disciplined workplace outweighed Stephens’s First Amendment
interests. Accordingly, Stephens fails to state a prima facie case for First
Amendment retaliation and Defendants are entitled to summary judgment.
III.

Same Employment Action
Defendants argue that, even if Stephens made out a prima facie case

for First Amendment retaliation, they would have come to the same conclusion in
the absence of the First Amendment-protected conduct. (Mot. at 34–35.)
59

According to Defendants, they began the disciplinary process in March, prior to
the April 7 and April 8 speech at issue. (Id. at 35.) Defendants do not cite to the
record to support this proposition, but suggest that the evidence is contained in the
declaration of Mannix and Paredes. In support of their argument, Defendants also
note that Stephens only challenges two of the seven reasons for termination cited in
the termination letter as protected speech. (Id.)
Stephens contends that neither of her supervisors concluded that
termination was appropriate until after the Gallegos Email was sent and that the
reasons cited in the termination letter would not have warranted termination
without the emails at issue. (Resp. ¶ 76–78.) In support of this position, she cites
to the testimony of Gibbens and Rodriguez, who state that the other five of the
seven reasons for termination would not have warranted termination and that
Gibbens and Rodriguez did not form the opinion that Stephens should be
terminated until after the Gallegos Email was sent. (Resp., Ex. 10 at 75:18–75:21;
id. at 123:18–125:2; Resp., Ex. 9 at 40:8–40:19; id. at 57:1–57:7.) Stephens also
cites to an email from Burton, which states that APD viewed the Gallegos Email
and the Beware Email “to be in violation of APD General Orders and is moving to
terminate Ms. Stephens.”2 (Resp., Ex.7 at 2.)

2

The Court notes that Stephens also cites to Harris’s statement that “he was
recommending termination, at least in part, because of the Gallegos Email.”
60

Stephens is correct that there is a fact issue as to whether the incidents
prior to April 8 would have warranted termination on their own. According to the
factual record, Stephens’s termination was a result of a series of incidents that
followed the institution of her disciplinary probation in late 2010. (Resp., Ex. 6 at
3.) Prior to the speech at issue, Defendants documented five instances of
misconduct that followed the probation—all listed in the termination letter, and
most of which involved insubordination and unprofessional conduct. (Id.; see also
Ex. 12 at 10 (finding an unacceptable level of performance with regard to
Customer Service/Professionalism because Stephens “[v]iolated several items
outlined in Disciplinary Probation and General Orders: Insubordinate to
supervisor, created hostile work environment for co-workers, made disparaging
remarks about supervisor and upper management, provided false information about
(Resp. at 30 (citing to Resp., Ex. 9 at 138:10–142:25).) As Defendants correctly
argue, this statement is hearsay. The precise statement upon which Stephens relies
is made by Rodriguez and states: “[Harris] was talking about the e-mail and at the
end of the conversation, Mr. Harris said he felt that he – that termination should be
what we should be looking at on the long-term after not only just this e-mail, but
accumulation of everything that had happened.” (Id. at 142:15–142:20.) Stephens
offers Rodriguez’s statement to prove the truth of the matter asserted therein, i.e.,
that Harris was recommending termination in part because of the Gallegos email.
Under Federal Rule of Civil Procedure 56(c)(2), a party can challenge evidence on
the basis that it cannot be presented in a form admissible in evidence. Because this
statement is hearsay that does not fall within any exception, see Fed. R. Evid.
801(c), it is inadmissible for summary judgment purposes. See Harris ex rel
Harris. v. Pontotoc Cnty. Sch. Dist., 635 F.3d 685, 692 (5th Cir. 2011) (“Hearsay
evidence inadmissible at trial cannot be used to create a genuine issue of material
fact to avoid summary judgment.”).
61

co-worker”).) In conjunction with the verbal and written reprimands, Defendants
repeatedly warned Stephens that similar conduct in the future would lead to
progressive disciplinary measures up to and including termination. (Mot., Ex. 3 at
4, 7, 18; id., Ex. 5 at 10.)
In Paredes’s declaration, she states that after the February 2011
incidents, she and management decided that Stephens’s “continued violation of the
[SOPs] was significant enough to possibly warrant termination and decided to go
forward with a pre-termination.” (Mot., Ex. 8 at 6.) She also states that she was
unable to schedule Stephens’s disciplinary hearing in March because Mannix was
out of the office for a week, and Acevedo was out of the office the following week.
(Id. at 7.) She finally notes that the Department preferred to have Acevedo in town
“when we have disciplinary issues that could result in termination so that he could
be appropriately briefed.” (Id.) Similarly, in describing the events, Mannix’s
declaration states: “Because it was possible that Ms. Stephens’ conduct would be
serious enough to warrant termination, I wanted Chief Acevedo to be available on
the date of any disciplinary meeting.” (Mot., Ex. 7 at 12.) While this evidence
establishes that there was a possibility that Stephens’s termination could have
occurred irrespective of the April 8 emails, it is not conclusive on the point. As the
Fifth Circuit has stated with regard to demotion in this context, “the issue is not
whether [the plaintiff] could have been demoted . . . but whether he would have
62

been demoted if he had not engaged in protected speech.” Haverda, 723 F.3d at
597.
However, this question is nevertheless inappropriate for the jury
because Stephens failed to make out her prima facie case with regard to the
protected speech at issue. The reasons in the termination letter related to the
protected speech are (1) that Stephens revealed a former employee’s
pharmaceutical addiction and eating disorder without that employee’s knowledge
or permission in the Gallegos Email; (2) that Stephens asked that a SWAFS
representative remove a job posting, which undermined the Department’s
recruiting efforts, in the DPS Email; and (3) that Stephens’s distribution of the
Beware Email on April 8 was disparaging to her chain of command and the
Department. (Resp., Ex. 6 at 3.) The Court has found that neither the DPS Email
nor the Beware Email constitute protected speech. Moreover, although parts of the
Gallegos email constitute protected speech, the Court has found that the
Defendants’ interest in efficiency outweighs Stephens’s interest in speech, and so
Stephens has not made out her prima facie case. Accordingly, the question as to
whether Defendants have made out their burden to show that the same employment
action would have occurred in absence of the speech at issue is irrelevant.
Similarly, although the Court granted discovery on pretext in the interests of
justice, evaluating pretext in this case puts the cart before the horse. Without a
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prima facie showing that Defendants engaged in First Amendment retaliation, the
question of pretext is irrelevant.
IV.

Qualified Immunity
Stephens makes a general, non-specific objection to the Magistrate

Judge’s finding that Acevedo is entitled to qualified immunity. This is insufficient
to warrant de novo review. See W.D. Tex. Assignment of Duties to United States
Magistrate Judges Rule 4(b). Nevertheless, the Court briefly reviews the merits of
her objection.
To withstand the qualified immunity defense, Stephens must
demonstrate that there was a violation of clearly established constitutional right.
Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815, 172 L. Ed. 2d 565
(2009). Finding no violation of a constitutional right, as described above, the Court
finds that Acevedo would be immune from the First Amendment claims made
against him in his individual capacity.
V.

Punitive Damages
Finally, Stephens makes a non-specific objection to the Magistrate

Judge’s finding that Stephens is not entitled to punitive damages. Again, although
the Court is not obligated, it briefly reviews the merits of the objection. See W.D.
Tex. Assignment of Duties to United States Magistrate Judges Rule 4(b).

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To receive punitive damages on a Section 1983 claim, a plaintiff must
show that the defendant’s conduct was “’motivated by evil intent’ or
demonstrate[d] ‘reckless or callous indifference’ to a person’s constitutional
rights.” Williams v. Kaufman Cnty., 352 F.3d 994, 1015 (5th Cir. 2003) (emphasis
omitted) (quoting Smith v. Wade, 461 U.S. 30, 56 (1983)). As discussed above,
Stephens has not made out a constitutional violation. Therefore, punitive damages
are unwarranted in this case.
CONCLUSION
For the aforementioned reasons, the Court DENIES Stephens’s
Objections and ADOPTS the Magistrate Judge’s Report and Recommendation,
insofar as it finds that Plaintiff has failed to make out her prima facie case. The
Court VACATES the Magistrate Judge’s Report and Recommendation as to its
findings that Defendants would have engaged in the same employment action in
the absence of the First Amendment protected conduct and that Plaintiff failed to
make a showing that the non-First Amendment reasons for that action were pretext,
since the Court does not reach the questions.
IT IS SO ORDERED.
DATED: Austin, Texas, September 30, 2014.

_____________________________________
David Alan Ezra
Senior United States Distict Judge

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