UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
____________________________
No. 97-30346 ____________________________
JERRY SINGLETARY; RHONDA SINGLETARY,
Plaintiffs-Appellees/Cross-Appellants,
versus
JAMES A. BRUMLEY, JR., Individually, and in his official capacity as Sheriff of Sabine Parish,
Defendant-Appellant/Cross-Appellee.
___________________________________________________________________
Appeal from the United States District Court for the Western District of Louisiana (95-CV-1468) _________________________________________________________________ August 12, 1998
Before KING, BARKSDALE, and PARKER, Circuit Judges.
PER CURIAM:*
The linchpin for this appeal from a jury verdict in a 42
U.S.C. § 1983 action is whether a sheriff’s deputy, who was
transferred, allegedly in retaliation for refusing the sheriff’s
request that the deputy speak to his wife about her opposition, as
a city council member, to the sheriff, proved a violation of the
deputy’s First Amendment rights. We hold that he did not and
REVERSE and RENDER judgment for the defendant, Sheriff James
Brumley, on that claim. We AFFIRM as to the cross-appeals.
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. I.
In January 1985, Jerry Singletary (Singletary) was hired as a
deputy for the sheriff’s department in Sabine Parish, Louisiana,
under Sheriff Brumley. Until September 1990, Singletary served as
a guard at the parish jail. While so serving, he experienced
severe anxiety and depression due to the confinement and his
feelings of helplessness, resulting, in part, from prisoner suicide
and rape attempts; and, he suffered a heart attack and a stroke.
As a result, Singletary and his wife, Rhonda Singletary, each
asked the Sheriff to transfer Singletary from the jail. In
September 1990, the Sheriff approved a transfer to the misdemeanor
probation office.
In February 1993, Rhonda Singletary was elected to the Many,
Louisiana, city council. That May, before taking office in July,
she was instrumental in helping pass a sales tax to fund building
a new parish jail, which the Sheriff had been seeking. And, in
mid-September, she voted in favor of connecting that new jail to
the municipal sewage and water service.
At an early November council meeting, the Sheriff requested
that the council grant a 50-foot wide right-of-way along Buffalo
Drive, which was owned by the city, to allow access to the new
jail. At a late November council meeting, Rhonda Singletary moved
instead for the council to abandon the right-of-way on Buffalo
Drive, with the exception of an asphalt drive then in use. The
council voted unanimously in favor of this motion.
2 The Sheriff testified at trial that he was “a little
aggravated” by Rhonda Singletary’s actions. In fact, he asked
Singletary to “get his wife off of [the Sheriff’s] back”.
Singletary responded that he and his wife kept their working roles
separate and that, instead, the Sheriff would have to talk to
Rhonda Singletary. The Sheriff felt that Singletary could not
“handle” his wife and “couldn’t figure out [how] a husband or an
employee of [the Sheriff] couldn’t go talk to their wife and see if
they couldn’t ... get it straight”.
At an early December council meeting, the Sheriff again
requested that the council grant the Buffalo Drive right-of-way.
The council voted three to one, with Rhonda Singletary as the sole
negative vote, to grant one 32 feet wide.
At a mid-April 1994 council meeting, in response to citizens’
complaints about speeding by sheriff’s deputies, the council voted
to install speed bumps on Buffalo Drive. The Sheriff testified at
trial that he was “not really mad” about this vote. Singletary
testified, however, that, immediately after the vote, the Sheriff
told him to “go to the house and get [his] wife straightened out”;
that Singletary again told the Sheriff that he did not “get mixed
in council business”; and that the Sheriff stormed out of the
office.
In August 1994, the Sheriff asked the council to have the city
help pay for repairs to Buffalo Drive, which had been damaged
during construction of the new jail. At a council meeting in mid-
August, it was tentatively agreed that the repair costs would be
3 divided equally between the city, the sheriff’s department, and the
police jury; but, the council denied the proposal because specific
information about actual costs was not then available.
At a police jury meeting the next day, regarding the cost-
sharing plan, Rhonda Singletary expressed concern, stating that the
city had already done its part by funding the new jail.
Nevertheless, the police jury voted to share in the repair costs.
On 24 August, a local newspaper published Rhonda Singletary’s
comments to the police jury. At trial, she testified that she
received a telephone call that same day in which the caller,
identifying himself as Deputy John Rainer, a political opponent of
the Sheriff, told her that, if she opposed the Sheriff, her husband
would lose his job or be demoted and transferred to the new jail.
Later that same day, Chief Deputy Bobby Brumley, the Sheriff’s
cousin, informed Singletary that he was to be transferred to the
new jail. The Chief Deputy told Singletary that he was not being
transferred because of his wife’s political opposition, but because
he was the most qualified person for the position.
The council met two days later, on 26 August, to vote on
whether to share the Buffalo Drive repair costs. Rhonda Singletary
told the council that her husband was being victimized because of
her opposition to the proposal and that, to avoid any further
retaliation, she had no choice but to abstain. The council voted
two to one to share in the repair costs.
Singletary testified that he asked the Sheriff not to transfer
him, but the Sheriff told him that it was out of his hands and that
4 the Chief Deputy was handling it. The Sheriff testified that his
Chief Deputy had originally suggested transferring Singletary
because he was the most qualified and had agreed to help out at the
new jail.
The doctor who had been treating Singletary for several years
advised him to resign due to his previous health problems resulting
from working at the old jail. In early September 1994, Singletary
did so. The Sheriff testified that he was shocked by the
resignation and that he had no reason to believe that Singletary
was unhappy about the transfer.
In August 1995, Rhonda and Jerry Singletary filed this action
under 42 U.S.C. § 1983 against the Sheriff, in his individual and
official capacities. They alleged that the transfer was in
retaliation for Rhonda Singletary’s opposition to the Buffalo Drive
matters; and claimed that the Sheriff’s actions violated “their
First Amendment rights of free speech, political activities, and
freedom of association”.
In answer to special interrogatories, the jury found: (1) that
Singletary’s exercise of his constitutionally protected rights was
a substantial or motivating factor in his being transferred to the
new jail (and awarded compensatory damages of $2,000); (2) that the
Sheriff, in his individual and official capacity, did not violate
Singletary’s constitutional rights (interrogatories 2 and 3); (3)
that Singletary’s transfer was not a constructive discharge; (4)
that the Sheriff did not violate Rhonda Singletary’s constitutional
rights; (5) that the Sheriff did not act with malice and wilfulness
5 or callous indifference to Rhonda Singletary’s constitutional
rights; (6) that Rhonda Singletary suffered no damages as a result
of the Sheriff’s wrongful actions; but, in answer to interrogatory
12, (7) that the Sheriff acted with malice and wilfulness or
callous indifference to Singletary’s constitutional rights (and
awarded punitive damages of $50,000).
Needless to say, the district court ruled that the answers to
interrogatories 2, 3, and 12 were inconsistent. In sum, by
answering negatively to numbers 2 and 3, but positively to 12, the
jury found that the Sheriff did not violate Singletary’s
constitutional rights, but yet acted with malice and wilfulness or
with callous indifference concerning those rights.
The court instructed the jurors that the responses to
interrogatories 2, 3, and 12 were inconsistent, and gave them an
opportunity to change them. The jury next found in the negative as
to interrogatory 3 (Sheriff’s individual capacity), but in the
affirmative as to numbers 2 and 12, finding that the Sheriff, in
his official capacity, did violate Singletary’s constitutional
rights and in so doing had acted with malice and wilfulness or with
callous indifference.
Post-trial, the district court considered whether the Sheriff,
in his official capacity, could be held liable for punitive
damages. It reasoned that, although “punitive damages are not
available against government officials acting in their official
capacity”, the jury had found that “Sheriff Brumley had acted with
malice and he deserved to be punished accordingly”. Therefore, the
6 district court reasoned, the inconsistency in the verdict was based
on a misunderstanding of the court’s instructions; “a logical and
probable explanation exist[ed]” for the verdict; and the award of
compensatory and punitive damages against the Sheriff was valid.
On the other hand, and concerning the other claims, because
the original verdict found that Singletary had not been
constructively discharged, the court dismissed that claim with
prejudice. And, it held that the original verdict was consistent
as to Rhonda Singletary and, therefore, dismissed her claims with
prejudice.
After both sides moved unsuccessfully for judgment as a matter
of law (as the Sheriff had done at the conclusion of the
Singletarys’ case-in-chief, as well as at the close of all the
evidence), or, in the alternative, for new trial, they appealed.
Judgment was stayed pending appeal.
II.
The Sheriff contends (1) that the first verdict, finding that
he had not violated Singletary’s constitutional rights, should be
reinstated; (2) that, in the alternative, the second verdict,
finding him liable in his official capacity, was misinterpreted by
the district court and does not support awarding punitive damages;
(3) that, in the further alternative, the evidence was insufficient
to support finding that Singletary’s First Amendment rights were
violated by the transfer; and (4) that the punitive damages are
excessive.
7 By cross-appeals, the Singletarys maintain that the evidence
does not support the jury’s finding (1) that Singletary was not
constructively discharged; (2) that the Sheriff did not violate
Rhonda Singletary’s constitutional rights; and (3) that the Sheriff
did not act either with malice and wilfulness or with callous
indifference to her constitutional rights.
For the reasons discussed infra, we conclude that the Sheriff
prevails on the liability issues presented by the appeal and cross-
appeals. Therefore, we do not reach the other issues raised by the
parties.
As discussed infra, violations vel non of First Amendment
rights generally involve issues of law, which we, of course, review
de novo. On the other hand, for sufficiency of the evidence
issues, our standard of review is likewise well-established. We
will uphold a jury verdict “unless ‘there is no legally sufficient
evidentiary basis for a reasonable jury to find’ as the jury did”.
Hiltgen v. Sumrall, 47 F.3d 695, 699-700 (5th Cir. 1995) (quoting
FED. R. CIV. P. 50(a)(1)).
A.
Under 42 U.S.C. § 1983, any person who, under color of state
law, deprives another “of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other proper
proceeding for redress”. In short, “an underlying constitutional
or statutory violation is a predicate to liability under § 1983”.
8 Johnston v. Harris County Flood Control Dist., 869 F.2d 1565, 1573
(5th Cir. 1989), cert. denied, 493 U.S. 1019 (1990).
The Sheriff maintains that Singletary did not prove a claim of
retaliation for the exercise of his First Amendment rights. In
this regard, Singletary’s specific First Amendment contentions are
unclear. As noted, the complaint states that the Sheriff violated
the Singletarys’ “First Amendment rights of free speech, political
activities, and freedom of association”. The pretrial order
mentions the Singletarys’ “First Amendment rights”, but, in the
section listing their specific legal contentions, mentions Rhonda
Singletary’s freedom of speech, and, with respect to Jerry
Singletary, only that his “right of free association was violated”.
The Singletarys’ proposed jury instructions stated that they
contend that their “rights of free speech, political activity, and
association were violated by [the Sheriff] when he demoted
[Singletary] because of his wife’s political opposition”. They
later filed an additional proposed instruction explaining the
“right of freedom of thought”, which “includes both the right to
speak freely and the right to refrain from speaking at all”, all
encompassed by the “broader concept of ‘individual freedom of
mind’”.
The Sheriff’s proposed instructions stated that Singletary
contended that he was constructively discharged “because of his
exercise of the right of free speech” and also mentioned a “free
association claim”. And, in their objections to the district
court’s instructions, the Singletarys requested that political
9 activity and/or association be added to the right of free speech
listed in those instructions.
The instructions submitted to the jury stated that Singletary
claimed that he suffered retaliation because of “his exercise of
the right of free speech and association”. Moreover, in response
to a jury note expressing confusion over what constitutional rights
were claimed, and by which plaintiff, the court responded that the
rights complained of were (1) “the right to associate with whom one
pleases without fear of intimidation or punishment by government
officials”; (2) “the right of free speech, that is the right to
make known (or [withhold]) one’s thoughts”; and (3) “as to Mrs.
Singletary - as an elected official, she has the protected right to
cast her vote without fear of official/governmental interference”.
Along this line, and most significantly, Singletary states
here only that his claim is based on his right to free speech; it
makes no mention of the right of association with respect to him.
But, out of an abundance of caution, and because the First
Amendment, which is mentioned generally in Singletary’s brief and
throughout the course of the trial, encompasses both freedom of
speech and association, we address both of these rights with
respect to Singletary’s § 1983 claim.
As noted, First Amendment violations vel non generally involve
issues of law, at least in part if not in whole; issues of law are
reviewed de novo. E.g., Cabrol v. Town of Youngsville, 106 F.3d
101, 109 (5th Cir. 1997). But, because Singletary’s First
Amendment claims are in large part fact-driven, it is arguable
10 that, as posed by the Sheriff, they concern sufficiency of the
evidence matters. Apparently, that is the manner in which they
were treated by the district court.
Of course, no authority need be cited for the fact that we
alone determine the proper standard of review. In this instance,
because of the quite unique factual backdrop presented, we have
reviewed the First Amendment issues under both standards. And,
under each, Singletary’s claims are wanting.
1.
In determining whether a public employee’s speech is afforded
First Amendment protection from retaliation, our court employs a
three-part test: (1) whether the speech involves a matter of public
concern; (2) whether the employee’s interest in speaking about
public concerns outweighs the employer’s interest in efficiency;
and (3) whether the employer’s decision to discharge the employee
was motivated by the employee’s speech. E.g., Thompson v. City of
Starkville, Miss., 901 F.2d 456, 460 (5th Cir. 1990). A First
Amendment retaliation claim must allege facts demonstrating that
the speech involved a matter of public concern, before we will
analyze the reasons for the discharge. Connick v. Myers, 461 U.S.
138, 146-47 (1983).
For speech to involve a matter of public concern, the speaker
must be acting as a citizen, rather than as an employee addressing
merely personal concerns. Id. at 147; Thompson, 901 F.2d at 465.
Whether speech involves a public, rather than a personal, concern
is determined by the content, form, and context of the statement,
11 viewed in the light of the entire record. Connick, 461 U.S. at
147-48.
Of course, freedom of speech encompasses “both the right to
speak freely and the right to refrain from speaking at all”.
Wooley v. Maynard, 430 U.S. 705, 714 (1977); see Jones v. Collins,
132 F.3d 1048, 1054-55 (5th Cir. 1998). As stated in Hays County
Guardian v. Supple, 969 F.2d 111, 123 (5th Cir. 1992) (emphasis
added), cert. denied, 506 U.S. 1087 (1993), this “right to refrain
from speech is violated when the government compels an individual
to endorse a belief that [he or she] finds repugnant”. See Wooley,
430 U.S. at 715 (holding unconstitutional New Hampshire statute
requiring state motto “Live Free or Die” to be displayed on
automobile licence plates, because statute required “public view”
of “an instrument for fostering public adherence to an ideological
point of view [the individual] finds unacceptable”); Miami Herald
Pub. Co. v. Tornillo, 418 U.S. 241 (1974) (holding that state
statute requiring newspaper to publish responses of political
candidates criticized by newspaper violated First Amendment); West
Virginia St. Bd. of Educ. v. Barnette, 319 U.S. 624 (1943) (holding
that state statute compelling public school students to participate
in public ceremonies saluting United States’ flag violated First
Amendment).
On two occasions, as detailed supra, the Sheriff asked
Singletary to “get [his] wife straightened out” so that she would
“quit causing [the Sheriff] so many problems on [the] jail issue”.
12 Restated, the Sheriff was ordering Singletary to get his wife to
stop opposing the Sheriff.
The question, for First Amendment purposes, is whether
Singletary was being ordered to endorse or support the Sheriff’s
positions on the issues on which Rhonda Singletary opposed the
Sheriff. It can certainly be argued that, indirectly, this is
exactly what the Sheriff was doing. If Rhonda Singletary didn’t
oppose the Sheriff’s positions, her other two options were to
support them or abstain/take no position. But, for a First
Amendment violation, more direct or positive indicators are
required. Cf. Nicholson v. Gant, 816 F.2d 591, 599 (11th Cir.
1987) (holding that First Amendment protects plaintiff’s silence
when she “clearly expressed her desire not to read [a] prepared
statement at [a] political rally”); Sykes v. McDowell, 786 F.2d
1098, 1104 (11th Cir. 1986) (deputy’s refusal to sign newspaper
advertisement endorsing sheriff’s campaign was protected speech
because “a public employee who positively asserts the right not to
speak when ordered to support his employer [politically] is within
the protection of the [F]irst [A]mendment”).
For activities to constitute expressive conduct and fall within the scope of the First Amendment, they must be sufficiently imbued with elements of communication. In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we ask whether an intent to convey a particularized message was present and whether the likelihood was great that the message would be understood by those who viewed it.
13 Cabrol, 106 F.3d at 109 (internal quotation marks and citation
omitted).
In any event, the answer is found in Singletary’s response to
the order that he speak to his wife. It was not that he did not
agree with the Sheriff’s position and, therefore, declined to
endorse it; instead, it was that Singletary and his wife kept their
respective positions separate and he didn’t participate in city
council matters. As stated in Jones, 132 F.3d at 1055, “[n]othing
... indicates that [Singletary] intended [his] silence ... to
constitute a statement of any sort”.
In sum, Singletary was not refraining from endorsing a
position on a matter of public concern. Instead, he was only
refraining from telling his wife to quit opposing the Sheriff. His
reasons for that refusal were not speech-driven; they were for
marital agreement/harmony, addressed infra.
Again, we would be presented with a different case if, for
example, the Sheriff had demanded that Singletary sign a petition
challenging Rhonda Singletary’s views. But, instead, the Sheriff
demanded only that Singletary “straighten out” his wife. In short,
Singletary’s stated reasons for refusing to do so did not implicate
an exercise of speech protected by the First Amendment.
As we stated in Thompson, “[t]he rationale behind the public
concern requirement is to prevent public employees from relying on
the Constitution for redress of personal grievances”. 901 F.2d at
461. And, as we are reminded by the Supreme Court in Connick,
[w]hen employee expression cannot be fairly considered as relating to any matter of
14 political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment. ... [W]hen a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.
461 U.S. at 146-47. That is the case here.
2.
Again, the specific First Amendment right on which Singletary
relies is unclear from the record and briefs. But, as discussed
supra, out of an abundance of caution, we also address the right of
association.
Although the Constitution does not expressly provide for a
right of association, the Supreme Court has long recognized two
such constitutional protections: (1) protection of “intimate human
relationships”, which are “a fundamental element of personal
liberty”; and (2) “a right to associate for the purpose of engaging
in those activities protected by the First Amendment--speech,
assembly, petition for the redress of grievances, and the exercise
of religion”. Roberts v. United States Jaycees, 468 U.S. 609, 617-
18 (1984); see also Hobbs v. Hawkins, 968 F.2d 471, 482 (5th Cir.
1992).
Singletary does not appear to be invoking the second type of
associative right, which concerns the “right to associate with
15 others in pursuit of a wide variety of political, social, economic,
educational, religious, and cultural ends”. Roberts, 468 U.S. at
622.
As for the first type of right of association, it serves to
protect “certain kinds of highly personal relationships ... from
unjustified interference by the State”. Id. at 618. Marriage fits
within this type. See Zablocki v. Redhail, 434 U.S. 374, 383-86
(1978). “A defendant can be held liable for violating a right of
intimate association only if the plaintiff shows an intent to
interfere with the relationship.” Morfin v. Albuquerque Pub. Sch.,
906 F.2d 1434, 1440 (10th Cir. 1990) (emphasis added).
Obviously, no such intent to interfere was shown in this case.
The Singletarys’ right to the association of marriage was not
violated by the Sheriff’s orders to Singletary to “straighten out”
his wife. Far more than that is required to have a valid claim of
this type.
B.
As noted, the cross-appeals are also unfavorable to the
Singletarys.
Singletary contends that the transfer to the new jail was a
demotion and, therefore, constituted a constructive discharge.
Such discharge occurs when the employer makes “working conditions
... so difficult or unpleasant that a reasonable person in the
employee’s shoes would have felt compelled to resign”. Bozé v.
Branstetter, 912 F.2d 801, 804 (5th Cir. 1990). This determination
16 is made under an objective, reasonable-person standard. Id.
(citing Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61, 65 (5th Cir.
1980)).
Singletary was transferred from his position as a misdemeanor
probation officer to a position as a day-shift supervisor at the
new jail. The new position had the same rank and salary. And,
Singletary conceded that he had never been in the new jail before
he resigned. In sum, reasonable jurors could find, as they did in
this case, that Singletary was not constructively discharged. See
Polanco v. City of Austin, Tex., 78 F.3d 968, 974 (5th Cir. 1996).
Rhonda Singletary asserts that the evidence does not support
the jury’s finding no violation of her claimed constitutional
rights.
She contends that the Sheriff’s retaliation against her
husband pressured her to abstain from voting at the 26 August 1994
council meeting on whether to share in repair costs for Buffalo
Drive. At oral argument, her counsel conceded that he was unaware
of any precedent to support the proposition that the Sheriff’s
transfer of Singletary, which allegedly intimidated Rhonda
Singletary, an elected official, into abstaining from voting, is a
violation of Rhonda Singletary’s First Amendment rights. Nor do we
see any basis for this claim. Surely, public officials must be
made of sterner stuff. The above-quoted cautions in Connick and
17 Thompson against finding a First Amendment violation under every
bush apply four-fold to this asserted violation.
Rhonda Singletary contends also that the Sheriff violated her
right of association in her marriage relationship when he told
Jerry Singletary to get her “straightened out”. For the reasons
stated supra, regarding the identical contention apparently raised
by Jerry Singletary, this contention fails.
c.
For the first time in her reply brief, Rhonda Singletary
contends that, under Louisiana law, she owns a one-half interest in
the community property of her marriage and, therefore, her
husband’s constructive discharge denied her the benefit of his
income. Needless to say, it is unclear how this argument affects
her claimed constitutional violations. See Jenkins v. Carruth, 583
F. Supp. 613, 616 (E.D. Tenn. 1982) (“The law seems clear that one
person may not sue, nor recover damages, for the deprivation of
another person’s civil rights.”). This contention seems to relate
only to the constructive discharge issue; an issue on which, as
discussed supra, Jerry Singletary does not succeed. In any event,
because this issue was not presented until the reply brief, we do
not address it. E.g., NLRB v. Cal-Maine Farms, Inc., 998 F.2d
1336, 1342 (5th Cir. 1993) (“[T]his court has repeatedly held ...
[that] we will not review arguments raised for the first time in a
reply brief.”).
18 III.
Accordingly, with respect to that part of the judgment
pertaining to Jerry Singletary’s First Amendment retaliation claim,
we REVERSE and RENDER for Sheriff Brumley; with respect to those
parts of the judgment pertaining to Jerry Singletary’s constructive
discharge claim and Rhonda Singletary’s claims, we AFFIRM.
AFFIRMED in PART; REVERSED and RENDERED in PART