REVISED, APRIL 9, 2001
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
________________________________
No. 99-50775 ________________________________
ONOFRE SERNA, Plaintiff-Appellee,
v.
THE CITY OF SAN ANTONIO; AL PHILIPPUS, Defendants-Appellants.
_____________________________________________
Appeal from the United States District Court For the Western District of Texas
_____________________________________________ March 26, 2001
Before JOLLY and DAVIS, Circuit Judges, and RESTANI*, Judge.
W. EUGENE DAVIS, Circuit Judge:
Onofre Serna, a police officer in the City of San Antonio,
Texas, sued the City of San Antonio and its chief of police, Al
Philippus, for transferring him to a different unit on the police
force in retaliation for his reporting illegal orders issued by his
commanding officer. The district court entered a judgment for
Serna after a jury returned a verdict for Serna on both his 42
* Judge, U.S. Court of International Trade, sitting by designation. U.S.C. § 1983 claims and his claim under the Texas Public
Whistleblower Act, TEX. GOV’T CODE ANN. § 554.001 et seq. (Vernon
Supp. 2000) and awarded him $500,000 in damages. Because the
evidence at trial was insufficient for a reasonable jury to
conclude that Serna suffered an adverse employment action as a
result of his transfer, we reverse the judgment of the district
court and render judgment for the City and Chief Philippus.
I.
This lawsuit arises out of Serna’s service in the Downtown
Foot and Bike Patrol Unit of the San Antonio Police Department.
Serna joined the unit in 1987, having joined the police force two
years earlier. In 1995, when problems in the unit came to a head,
the unit was commanded by Captain Rudy Vernon and Lieutenant Harry
Griffin. The problems in the unit grew out of friction between
some members of the unit and Griffin. In particular, Griffin and
several members of the evening shift, of which Serna was a part,
did not get along.
In 1995 Griffin called for cover from other officers in his
unit while he was detaining a suspect. Four officers, Serna not
among them, did not cover Griffin even though they were in a
position to do so. These four officers were then transferred out
of the unit as a result of their failure to cover Griffin. They
filed complaints with the Police Department’s equal employment
opportunity officer, Linda Taylor, to protest their transfer and to
complain about their treatment by Griffin.
-2- Taylor arranged a meeting between Griffin and the members of
his unit to try to clear the air after she heard the complaints of
the four transferred officers. The meeting, held in July of 1995,
failed to settle the problems in the unit.
Several officers, including Serna, felt that Griffin was
giving illegal orders to them. These orders were, they thought, to
harass the homeless and the minority teenagers who frequented
downtown, to confiscate alleged gang paraphernalia and not return
it to its rightful owner, and to selectively enforce public
intoxication statutes against downtown bars that catered to a
minority and working class clientele. These officers, including
Serna, complained about these orders at the meeting convened by
Taylor in July of 1995.
As a result of continuing tension in the unit, Chief Philippus
appointed a special committee to investigate the source of the
problems. The committee interviewed every member of the unit,
including Serna, and issued a report in July of 1996. The
committee concluded that a group of officers, Serna prominent among
them, were disruptive and encouraged other officers to show
disrespect to their supervisors. The committee also concluded that
Griffin was a poor manager and unfairly denigrated the efforts of
the evening shift. To solve the problems in the unit, the
committee recommended, in part, that Serna be transferred out of
the unit. Chief Philippus did just that, transferring Serna to a
regular patrol unit in July of 1996.
-3- II.
In August of 1996 Serna filed suit against the City in the
37th Judicial District Court in Bexar County, Texas. Serna alleged
that he had been transferred in retaliation for reporting Griffin’s
illegal orders in violation of the Texas Public Whistleblower Act,
TEX. GOV’T CODE ANN. § 554.001 et seq. (Vernon Supp. 2000). Serna
later amended his complaint to add Chief Philippus as a defendant
and to add claims that he had been transferred in retaliation for
exercising his rights of free speech, free association, equal
protection, and due process in violation of 42 U.S.C. § 1983. The
City and Chief Philippus timely removed the suit to federal court.
The district court granted summary judgment to the City and
Chief Philippus on Serna’s equal protection and due process § 1983
claims. The remainder of Serna’s claims were tried to a jury.
After nine days of testimony, the jury found for Serna on his Texas
Whistleblower Act claim, his free speech § 1983 claim, and his free
association § 1983 claim and awarded him $500,000 in compensatory
damages. The district court entered judgment for Serna after first
lowering the damage award to $475,000 due to a drafting error in
the jury form.
The City and Chief Philippus now appeal the judgment entered
by the district court on numerous grounds, including that the
district court should have granted them judgment as a matter of law
because there was insufficient evidence for the jury to find that
Serna suffered an adverse employment action as a result of his
-4- transfer.
III.
We review a district court’s decision to grant judgment as a
matter of law de novo. Travis v. Bd. of Regents of the Univ. of
Tex. Sys., 122 F.3d 259, 263 (5th Cir. 1997). In reviewing whether
or not there was evidence sufficient to support a jury’s verdict we
review all the evidence in the record, drawing all reasonable
inferences in favor of the non-moving party and without making
determinations about the credibility of witnesses or the weight of
the evidence. Reeves v. Sanderson Plumbing Prods., __ U.S. __, 120
S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000).
To properly preserve review of a jury’s verdict based on the
sufficiency of the evidence, a party must move for judgment as a
matter of law after the close of all the evidence. Bay Colony,
Ltd. v. Trendmaker, Inc., 121 F.3d 998, 1003 (5th Cir. 1997);
Purcell v. Seguin State Bank and Trust Co., 999 F.2d 950, 956-57
(5th Cir. 1993); McCann v. Tex. City Ref., Inc., 984 F.2d 667, 671
(5th Cir. 1993). If a party does not make such a motion, it can
not ordinarily raise the issue of sufficiency of the evidence in
its post-verdict motion under Fed. R. Civ. P. 50(b) or on appeal.
In this case the City and Chief Philippus made their motion
for judgment as a matter of law after the jury had been charged and
had begun deliberations, but before it returned a verdict. Thus,
their motion was untimely. However, our court has always
approached the requirements of Fed. R. Civ. P. 50 with a, “liberal
-5- spirit.” Alcatel USA, Inc. v. DGI Technologies, Inc., 166 F.3d
772, 780 (5th Cir. 1999); McCann, 984 F.2d at 671; Davis v. First
Nat’l. Bank of Killeen, Tex., 976 F.2d 944, 948 (5th Cir. 1992).
In particular, we have been willing to excuse a failure to strictly
comply with the requirements of Fed. R. Civ. P. 50 so long as the
purposes of the rule are satisfied. Quinn v. Southwest Wood
Prods., Inc., 597 F.2d 1018, 1026 (5th Cir. 1979).
The facts of this case are closely analogous to those of
Quinn. In Quinn, the party moving for judgment as a matter of law
made its motion after the jury had been charged and had retired,
though before it had begun deliberations. We held that though the
motion was untimely, there was nothing in the record to suggest
that the moving party intended to gamble on the verdict. The
district court accepted the motion and ruled on its merits. We
observed that it was still possible to recall the jury and put on
more evidence. As such, we considered the moving party’s challenge
to the sufficiency of the evidence properly preserved. Id. at
1026. In this case, there is also nothing in the record to suggest
that the City and Chief Philippus intended to gamble on the jury’s
verdict. The district court accepted the motion by the City and
Chief Philippus over the objection of Serna that it was untimely
and ruled on the merits of the motion. R., Vol. 15 at 1795. Serna
did not argue that he was being treated unfairly and he made no
argument that he would have offered more evidence had the motion
been made timely.
-6- The timing of the motion in this case was anomalous and
inconvenient. That the district court chose to rule on the merits
of this motion makes this case unique; had the district court
rejected the motion as untimely then we would be faced with a very
different situation.1 However, as the district court did not
reject the motion as untimely, we are convinced that the City and
Chief Philippus did not gamble on the jury’s verdict in this case.
Because the City and Chief Philippus acted in such a manner as to
satisfy the purposes of Fed. R. Civ. P. 50, we hold that their
objections to the sufficiency of the evidence are properly
preserved for review.
IV.
A party must satisfy four elements to recover on a First
Amendment retaliation claim under 42 U.S.C. § 1983. The party must
(1) suffer an adverse employment action; (2) show that the speech
in question was on a matter of public concern; (3) show that their
interest in commenting on matters of public concern outweighs their
employer’s interest in efficiency; and (4) show that the speech
motivated the adverse employment action. Harris v. Victoria Indep.
Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999), cert. denied, 528
U.S. 1022, 120 S.Ct. 533, 146 L.Ed.2d 413 (1999). To recover on a
1 The district court in its post-trial Order Denying Defendants’ Motion for Judgment as a Matter of Law or For New Trial found specific issues preserved including whether First Amendment rights were implicated, whether an adverse employment action occurred, qualified immunity, and certain damages issues.
-7- claim under the Texas Public Whistleblower Act a party must satisfy
three elements. The party must show (1) a good faith report of a
violation of law; (2) that the report was made to an appropriate
law enforcement authority; and (3) show a suspension or termination
of employment, or other adverse personnel action, as a result of
the report. TEX. GOV’T CODE ANN. § 554.002(a) (Vernon Supp.
2000).
Under 42 U.S.C. § 1983 a transfer may, under certain
circumstances, constitute an adverse employment action. Our case
law is well-developed on the question of when a transfer may
qualify as an adverse employment action. See, for example, Breaux
v. City of Garland, 205 F.3d 150 (5th Cir. 2000), cert. denied, __
U.S. __, 121 S.Ct. 52, 148 L.Ed.2d 21 (2000); Forsyth v. City of
Dallas, 91 F.3d 769 (5th Cir. 1996); Click v. Copeland, 970 F.2d
106 (5th Cir. 1992). The Texas Public Whistleblower Act defines
the term personnel action as including, inter alia, a transfer.
TEX. GOV’T CODE ANN. § 554.001(3) (Vernon Supp. 2000). Therefore,
a party may satisfy the third element of their claim by showing
that they suffered an adverse transfer. However, the Texas courts
have yet to set out under what circumstances a public employee’s
transfer can be considered adverse.
Both Serna and the City and Chief Philippus argue that we
should define adverse transfer for the purposes of the Texas Public
Whistleblower Act by looking to our case law under 42 U.S.C. §
1983. That is, all the parties argue that we should define adverse
-8- transfer under the Texas Public Whistleblower Act in the same way
as we define adverse personnel action under 42 U.S.C. § 1983.
Thus, we will measure whether the evidence was sufficient to
support the jury’s verdict on both Serna’s 42 U.S.C. § 1983 claims
and his claim under the Texas Whistleblower Act by the standards we
have developed under 42 U.S.C. § 1983.
A transfer, even without an accompanying cut in pay or other
tangible benefits, may constitute an adverse employment action
under 42 U.S.C. § 1983. However, it is insufficient for a
plaintiff to show merely that he has been transferred from a job he
likes to one that he considers less desirable. Rather, a plaintiff
must produce enough evidence to allow a reasonable trier of fact to
conclude that, when viewed objectively, the transfer caused harm to
the plaintiff, “sufficiently serious to constitute a constitutional
injury.” Breaux, 205 F.3d at 152. Personnel actions that are
commonly considered serious enough to inflict constitutional injury
are discharges, demotions, refusals to hire, refusals to promote,
and reprimands. Id. at 157; Pierce v. Texas Dep’t. of Crim.
Justice, Institutional Div., 37 F.3d 1146, 1149 (5th Cir. 1994).
A plaintiff must establish that his transfer was equivalent to one
of those actions to show that he has suffered an adverse personnel
action. Brown v. Brody, 199 F.3d 446, 457 (D.C. Cir. 1999); Harris,
168 F.3d at 221; Forsyth, 91 F.3d at 774; Click, 970 F.2d at 110.
To put it somewhat differently, the plaintiff must show that he has
suffered some serious, objective, and tangible harm as a result of
-9- his transfer. An important corollary to this rule is that the
personal preferences and subjective perceptions of the plaintiff
are insufficient to establish that his transfer inflicted a
constitutional injury. Forsyth, 91 F.3d at 774.
We now turn to the evidence presented at trial and whether it
was sufficient to allow the jury to conclude that Serna’s transfer
from the Downtown Foot and Bike Patrol Unit to a patrol unit in
another part of San Antonio was an adverse personnel action. We
conclude that the evidence was not sufficient.
The plaintiff, Serna, and his fellow Officers O’Connor,
Froelick, and Messer all testified that they considered the
Downtown Foot and Bike Patrol Unit to be a prestigious assignment
and that their opinion was generally shared within the San Antonio
Police Department. R., Vol. 7 at 112, Vol. 8 at 422, Vol. 9 at
459, 489. For example, Officer O’Connor testified as follows,
Q. Do you consider the Downtown Foot and Bike Patrol one of the more desirable assignments in the San Antonio Police Department? A. Yes, sir. Q. Is that pretty well acknowledged as on of the premier assignments in the police department generally? A. Generally, yes, sir.
R., Vol. 7 at 112. Chief Philippus also testified that he had once
described the Downtown Foot and Bike Patrol Unit as the “best of
the best.” R., Vol. 9 at 745. Moreover, Officers Hester, Vasquez,
and Middleton testified that they thought the tactics used by the
Downtown Foot and Bike Patrol Unit made the unit more desirable
-10- than regular patrol assignments. Regular patrol units had to
respond to disturbance calls as assigned by a dispatcher. They had
little ability to seek out criminal activity and stop it on their
own. The Downtown Foot and Bike Patrol Unit was more “proactive”
in that officers were given more freedom to seek out and stop
criminal activity on their own. R., Vol. 7 at 79, Vol. 12 at 1239,
Vol. 13 at 1526. However, these officers also testified that their
preference for the tactics of the Downtown Foot and Bike Patrol
Unit was only a matter of personal preference.
Serna testified that Chief Philippus called him a “silent
instigator” when he went to him to get some explanation for why he
was transferred. R., Vol. 7 at 170. Serna also testified that
this label followed him to his new assignment, and that this label
would prevent him from ever being promoted in the department. R.,
Vol. 7 at 175. However, Serna produced no evidence confirming his
belief that this label followed him. In particular, he never
identified any officer who held this opinion in his new assignment.
Nor did he identify any officer who thought any less of his
abilities. In fact, every officer who testified to this issue at
trial stated that they still thought of Serna as a good officer.
Moreover, Serna testified that he had never taken a qualifying
examination or other steps to seek a promotion. Indeed, Serna
testified that he had not even sought a transfer out of the patrol
unit to which he had been transferred. R., Vol. 8 at 339.
Finally, Serna’s testimony must be considered in light of Officer
-11- Odell Johnson’s testimony. Johnson was also involuntarily
transferred out of the Downtown Foot and Bike Patrol Unit after
conflict with Griffin, but Johnson sought and won promotion to
detective shortly after his transfer. R., Supplemental Vol. at
575.
Serna also testified that, as a result of his transfer, his
pension would be substantially reduced as he would retire from the
force as soon as he would qualify for a pension. However, such a
reduction in his pension would result solely from Serna’s desire to
retire early. R., Vol. 8 at 353. No other evidence tended to
establish any obstacle to Serna’s working to the usual retirement
age.
The jury was entitled to believe that Serna felt tagged as a
trouble maker and stigmatized as a result of his transfer and that
he sincerely did not intend to work as long as he had previously
intended, even though the City and Chief Philippus introduced
evidence that no stigma was intended by the transfer. However, all
Serna’s testimony established was that he felt stigmatized and
injured by his transfer. That is insufficient to prove that,
viewed objectively, this transfer was an adverse personnel action.
In sum, all the evidence at trial tended to show was that the
Downtown Foot and Bike Patrol Unit was more prestigious than other
patrol units and that some officers preferred its tactics to those
of other patrol units. There was no evidence to suggest that a
transfer to a regular patrol unit was generally considered to be a
-12- demotion or any kind of punishment. Almost every officer who
testified at trial testified that they had spent a substantial
portion of their career in a regular patrol unit. Some in fact had
spent their entire career in a regular patrol unit. Chief
Philippus himself testified that he spent four years in a patrol
unit before being promoted to detective. R., Vol. 9 at 735.
Philippus also testified that most officers would work in a regular
patrol unit for some part of their career, and Deputy Chief Richard
Gleisner testified that most of the San Antonio Police Department’s
uniformed officers worked in patrol units. Id.; R. Vol. 10 at 931.
Serna can hardly argue that he suffered a constitutional injury
when he was transferred to a duty all of his fellow officers
performed for some part of their careers.
Serna’s days off before he was transferred were Saturday and
Sunday; for a short time immediately after his transfer, his days
off were Wednesday and Thursday, but he was soon able to change
them back to Saturday and Sunday. Serna’s hours did change from a
6 pm to 2 am shift to a 10:30 pm to 6:30 am shift. However,
nothing in the record shows that Serna was bothered by his new
hours or that he attempted to get them changed, as he had with his
days off. Serna never suffered a loss in pay or benefits, and he
produced no objective evidence that his chances for promotion were
reduced by his transfer. All the evidence established was that
Serna was transferred from a unit considered prestigious and
desirable to another unit on the force, one to which most of his
-13- fellow officers were assigned. That is insufficient to establish
that Serna suffered an adverse employment action.
In only two cases have we previously held that a plaintiff who
had been transferred without an accompanying cut in pay or
benefits, or without an accompanying written reprimand, produced
sufficient evidence that his transfer could be considered an
adverse personnel action by a reasonable trier of fact.2 In each
case the evidence was considerably more substantial than that in
this case.
In Click we held that a reasonable trier of fact could
conclude that the transfer of two sheriff’s deputies from duty in
the law enforcement section of the sheriff’s office to duty as jail
guards in the detention center was an adverse employment action.
We did so based on several sources of evidence. First, the
assistant director of the jail stated that “everybody” considered
transfer from the jail to law enforcement to be a promotion.
Second, the civil service director said that eight people appealed
transfers from the law enforcement section to the jail, and only
one the other way. Third, the Sheriff himself stated that all the
jail guards would like to be transferred to the law enforcement
section if they could. Fourth, and finally, we held that the two
deputies lost certain seniority rights after their transfer.
2 The situation also arose in Sharp v. City of Houston, 164 F.3d 923 (5th Cir. 1999). However, our review in that case was only for plain error.
-14- Click, 970 F.2d at 110. There is no evidence in this case that
regular patrol assignments were considered punishment or even that
they were considered less desirable generally. No one testified
that officers were clamoring to get out of regular patrol
assignments. There was certainly no testimony, unlike in Click,
from the Chief or any other senior officer that regular patrol was
anything other than a good assignment.
In Forsyth, two detectives in the intelligence unit of the
City of Dallas Police Department were transferred to night
uniformed patrol after they exposed illegal wiretapping. We held
that the evidence was sufficient for a jury to conclude that the
two officers had suffered an adverse employment action. In
particular, we concluded that the evidence tended to show that
positions in the intelligence unit were more prestigious, had
better working hours, and were more interesting than those in night
uniformed patrol. The evidence also showed that other members of
the department had been transferred to night uniformed patrol as
punishment. Forsyth, 91 F.3d at 774. The factual distinctions
between Forsyth and the instant case are clear. Nothing in the
record shows that Serna has ever been bothered by his new working
hours or that he has tried to have them changed. Though some
officers did testify that they liked the tactics of the Downtown
Foot and Bike Patrol Unit better than those of regular patrol
units, that was only a matter of personal preference. Most
importantly, Serna has not shown that transfers from the Downtown
-15- Foot and Bike Patrol to regular patrol were ordered as punishment,
either for himself or for anyone else.
VI.
Because Serna produced insufficient evidence to establish that
he suffered an adverse employment action as a result of his
transfer, Serna may not recover on either his 42 U.S.C. § 1983
claims or his claims under the Texas Public Whistleblower Act.
Accordingly, we REVERSE the judgment of the district court and
RENDER judgment for the City and Chief Philippus.
REVERSED AND RENDERED.
-16-