Lumpkin v. Aransas County

224 F. Supp. 3d 513, 2016 U.S. Dist. LEXIS 188416, 2016 WL 7734607
CourtDistrict Court, S.D. Texas
DecidedAugust 30, 2016
DocketCIVIL ACTION NO. 2:15-CV-190
StatusPublished

This text of 224 F. Supp. 3d 513 (Lumpkin v. Aransas County) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lumpkin v. Aransas County, 224 F. Supp. 3d 513, 2016 U.S. Dist. LEXIS 188416, 2016 WL 7734607 (S.D. Tex. 2016).

Opinion

ORDER ON MOTION FOR SUMMARY JUDGMENT

NELVA GONZALES RAMOS, UNITED STATES DISTRICT JUDGE

Plaintiffs, Gwynn Lumpkin and Leslie Krenek filed this lawsuit pursuant to 42 U.S.C. § 1983 against Aransas County, Texas (the County), claiming that they were discharged from the County’s employment as paralegals in retaliation for their exercise of their First Amendment right to free speech. D.E. 1. Before the Court is the County’s Motion for Summary Judgment (D.E. 22). Plaintiffs filed their Response (D.E. 23) and Defendants filed a Reply (D.E. 24). On July 5, 2016, the Court heard arguments on the motion and ordered additional briefing. Thereafter, Plaintiffs filed their Second Supplemental Response (D.E. 34) and Defendants filed their Supplemental Reply (D.E. 36). For the reasons set out below, the Court GRANTS the motion (D.E. 22).

FACTS

Aransas County, Texas employed Plaintiffs Gwynn Lumpkin (Lumpkin) and Leslie Krenek (Krenek) for many years as paralegals in the County Attorney’s office. At the time of the events involved in this lawsuit, County Attorney Richard Bianchi (Bianchi) was running against the incumbent, William Adams, for Judge of the Aransas County Court-at-Law. Bianchi won the March 2014 Republican primary, had no Democratic opponent in the general election, and took the bench in January 2015. At that time, Kristen Barnebey (Bar-nebey) 1 became the County Attorney. This case involves events in the County Attorney’s office leading up to the election and the post-election termination of Plaintiffs.

After Bianchi announced his candidacy for Judge in the summer of 2013, Assistant County Attorney, Deborah Bauer (Bauer), hoped that Bianchi would resign his position as County Attorney, consistent [517]*517with the Texas resign-to-run law. She apparently complained to Aransas County’s District Attorney Mike Welborn (Welborn) regarding Bianchi’s alleged failure to comply with the Texas resign-to-run law2 and her observations of him campaigning on government time, among other things. Thereafter, Bauer’s employment circumstances allegedly deteriorated. Bianchi demoted her, changed her case assignments, moved her to a less desirable office, took away the support of the paralegals in the office, eliminated her ability to work from home, and ultimately terminated her after she took medical leave.

Bauer sued the County for unlawful employment practices, including retaliation for taking leave under the Family Medical Leave Act, retaliation for exercising First Amendment rights, and including a Whis-tleblower claim. See Bauer v. Aransas County, Texas, No. 2:14-cv-075 (S.D. Tex.). In the course of that litigation, Plaintiffs in this case, Lumpkin and Kre-nek, were deposed and their text conversations about events in the County Attorney’s office were disclosed. On January 30, 2015, after Bianchi took the bench and Barnebey took over the County Attorney’s office, the parties announced the settlement of Bauer’s case. On February 2, 2015, Barnebey terminated the employment of Lumpkin and Krenek.

Barnebey candidly admitted that the terminations were based, in part, on what Lumpkin and Krenek said in their respective depositions and texts disclosed during the Bauer litigation. Lumpkin and Krenek contend that this shows they were fired in retaliation for their exercise of the First Amendment right to free speech. In de~ fense, the County explains that Barnebey’s decision was based upon the juxtaposition of deposition testimony and texts and other conduct, which calls into question Plaintiffs’ honesty, integrity, and willingness to be team players. Defendant County seeks summary judgment that (1) Lumpkin’s and Krenek’s texts are not entitled to First Amendment protection, (2) the terminations were not caused by any First Amendment speech, and (3) no free speech rights outweighed the County’s interest in effective public service.

DISCUSSION

An action under § 1983 for retaliation against a public employee based upon that employee’s exercise of the First Amendment right to free speech requires proof of the following elements:

First, the Plaintiffs must suffer an adverse employment decision. Second, the Plaintiffs’ speech must involve a matter of public concern [with the Garcetti threshold question resolved in favor of citizen speech over employee speech]. Third, the Plaintiffs’ interest in commenting on matters of public concern must outweigh the Defendants’ interest in promoting efficiency [the Pickering balancing test]. Fourth, the Plaintiffs’ speech must have motivated the Defendants’ action.

Harris v. Victoria Independent School District, 168 F.3d 216, 220 (5th Cir. 1999) (citations omitted). The first element is undisputed. Plaintiffs were terminated—an undeniably adverse employment action. E.g., Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997). The County’s summary judgment motion contends that Plaintiffs [518]*518cannot meet any of the remaining requirements.

A. Whether Speech Involved a Matter of Public Concern a. Scope and Standard of Review

The second element is directed to whether the speech was entitled to First Amendment protection as a citizen’s contribution to a matter of public concern. The County challenged this element on the preliminary basis that Plaintiffs refused to identify the specific text messages or deposition testimony alleged to constitute protected speech. Rather than identify and explain, Plaintiffs objected to the request to do so in their depositions, claiming that First Amendment protection is a question of law. In their original summary judgment response, Plaintiffs requested rulings on those objections—solidifying their refusal to identify the speech on which they base their claims. And in response to discovery asking them to identify the protected speech that serves as the basis of their claim, Plaintiffs simply identified “all of it.”

In their second supplemental response, Plaintiffs narrowed down their complaint to three groupings of text conversations that touch on a number of topics. D.E. 34, pp. 5-10. In mixed speech cases such as this, where there are multiple topics and recipients, the Court separately analyzes each aspect of the communication. Davis v. McKinney, 518 F.3d 304, 314 (5th Cir. 2008). That does not mean, however, that the texts are taken in isolation. “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.”3 Connick v. Myers, 461 U.S. 138, 147-48, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983). This is a question of law for the Court. Id. at 148, 103 S.Ct. 1684 n.7. Each topic will be considered below.

b. Garcetti Threshold Decision: Citizen Speech Versus Employee Speech

As will be detailed below, the Court agrees that, in the abstract and much like the speech in the Connick

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Bluebook (online)
224 F. Supp. 3d 513, 2016 U.S. Dist. LEXIS 188416, 2016 WL 7734607, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lumpkin-v-aransas-county-txsd-2016.