Filed: Jan. 09, 2002
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-50771 Summary Calendar MICHAEL LACEY, Plaintiff-Appellee, versus RUBEN TEJEDA, Etc; ET AL., Defendants, RUBEN TEJEDA, Bexar County Constable Precinct 5, Individually and in his Official Capacity, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Texas (SA-00-CV-786-EP) _ January 8, 2002 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Constable Ruben Tejeda appeals hi
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-50771 Summary Calendar MICHAEL LACEY, Plaintiff-Appellee, versus RUBEN TEJEDA, Etc; ET AL., Defendants, RUBEN TEJEDA, Bexar County Constable Precinct 5, Individually and in his Official Capacity, Defendant-Appellant. _ Appeal from the United States District Court for the Western District of Texas (SA-00-CV-786-EP) _ January 8, 2002 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Constable Ruben Tejeda appeals his..
More
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-50771
Summary Calendar
MICHAEL LACEY,
Plaintiff-Appellee,
versus
RUBEN TEJEDA, Etc; ET AL.,
Defendants,
RUBEN TEJEDA, Bexar County Constable Precinct 5, Individually and
in his Official Capacity,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(SA-00-CV-786-EP)
_________________________________________________________________
January 8, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Constable Ruben Tejeda appeals his being denied qualified
immunity against Michael Lacey’s First Amendment retaliation claim.
AFFIRMED.
I.
Lacey was employed by the Bexar County, Texas, constable’s
office, achieving the position of chief deputy before being
*
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this opinion should not be published and is not precedent except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.
terminated in July 1998. Lacey contends that, prior to his
termination, he became aware of illegal activity in that office.
Lacey asserts: he was informed that one deputy constable was using
illegal steroids; Constable Tejeda received payment for work done
for private citizens by deputy constables while on county time; and
the Constable did not report these payments to the county auditor.
After Lacey informed Constable Tejeda about these items, the
Constable ordered Lacey to provide him with all information and
evidence he had relating to them. Lacey refused; instead, he
provided the information to the Bexar County district attorney’s
office and the Texas Rangers. Lacey claims he was terminated due
to his refusal to provide the investigative files to the Constable
and because he provided the information to other entities.
Lacey filed a grievance with the Bexar County Civil Service
Commission, which ordered his reinstatement. When Constable Tejeda
refused to allow Lacey to return, Lacey unsuccessfully sought a
writ of mandamus from state district court; the denial was upheld
by the Texas Court of Appeals on the basis the commission was
without authority to order the reinstatement. See Lacey v. Tejeda,
2001 WL 246810 (Tex. App. 2001).
Lacey filed this action in July 2000 under 42 U.S.C. § 1983
and the Texas Whistleblower Act, claiming his termination violated
his procedural and substantive due process rights and was in
2
retaliation for exercising his First Amendment rights and for
reporting the alleged illegal conduct.
The County’s motion to dismiss and/or for summary judgment was
granted. Constable Tejeda’s summary judgment motion was granted in
part and denied in part, leaving only the First Amendment
retaliation claim and denying qualified immunity. Lacey v. Tejeda,
No. SA-00-CA-786-EP, at 11 (W.D. Tex. 30 Jul. 2001).
II.
In this interlocutory appeal, Tejeda maintains he is entitled
to qualified immunity, asserting: (1) there was no violation of a
clearly established constitutional right because Lacey’s speech was
not public in nature and there was no nexus between the speech and
the termination; and (2) his (Constable Tejeda’s) actions were
objectively reasonable.
The “denial of summary judgment on qualified immunity is ...
immediately appealable, even when a genuine issue of material fact
exists, when the order determines a question of law”. Hare v. City
of Corinth, Miss., 135 F.3d 320, 324 (5th Cir. 1998). Restated,
our jurisdiction is limited to immunity denials “turn[ing] upon an
issue of law and not of fact”. Stem v. Ahearn,
908 F.2d 1, 3 (5th
Cir. 1990), cert. denied,
498 U.S. 1069 (1991).
No authority need be cited for the fact that, in reviewing a
summary judgment denial, we view the record de novo. Of course,
3
the evidence is viewed “in the light most favorable to the
nonmovant”. Hare, 135 F.3d at 325.
Constable Tejeda is entitled to qualified immunity unless:
Lacey has alleged the violation of a clearly established
constitutional right; and the Constable’s conduct was objectively
unreasonable in the light of clearly established law. E.g., Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982).
A.
For a First Amendment retaliation claim, Lacey must allege:
(1) he suffered an adverse employment action; (2) his speech
involved an issue of public concern; (3) his interest in making it
outweighed the defendant’s interest in efficiency; and (4) the
speech motivated the adverse employment action. Kennedy v.
Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 366 (5th
Cir. 2000). Constable Tejeda contends that Lacey has not satisfied
the second and fourth elements.
1.
Concerning the fourth element, a nexus between the speech and
the termination, Lacey asserts, and Constable Tejeda does not
contest, that the Constable never raised this issue in district
court. Generally, “we [do not] consider matters not presented to
the trial court”. St. Paul Mercury Ins. Co. v. Williamson, 224
F.3d 425, 445 (5th Cir. 2000). Accordingly, we will not consider
this issue raised for the first time on appeal.
4
2.
Concerning the second element, the district court concluded
that Lacey’s speech involved an issue of public concern. We will
assume this is a “mixed speech” case in that Lacey was speaking as
both citizen and employee. See, e.g., Teague v. City of Flower
Mound, Tex., 179 F.3d 377, 380-81 (5th Cir. 1999) (mixed speech
occurs where speech is of both a public and private concern; that
regarding police corruption is a matter of public concern; that
regarding conditions of employment is a matter of private concern).
Mixed speech is a matter of public concern if: (1) the
content “does not involve solely personal matters or [is not]
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”; (2) the speech, even though not directed to
the public, is “made against the backdrop of public debate”; and
(3) the speech is not “made in furtherance of a personal employer-
employee dispute”. Kennedy, 224 F.3d at 372.
a.
Lacy reported alleged illegal drug use within the constable’s
office, as well as Tejeda’s not disclosing payment from private
parties for work by on-duty deputy constables. These subjects are
not a personal matter and are not of interest to the public solely
because of the Constable’s status as an arm of the government.
Instead, this information goes to the very heart of public
5
confidence in the integrity of law enforcement. Likewise, such
reporting is not a personal employer-employee dispute; these issues
are independent of, for example, his job performance or the
conditions of his employment.
b.
Lacey’s speech was not made to the public, but to the district
attorney and the Texas Rangers. Accordingly the issue is whether
it was made against the backdrop of public debate. There is
certainly public debate regarding police misconduct; and, as the
district court found, although Lacey did not take his allegations
to the media, other deputy constables did report to the media
alleged corrupt practices within the constable’s office.
Therefore, Lacey’s report was made against the backdrop of public
debate regarding police misconduct.
In sum, Lacey alleged the violation of a clearly established
constitutional right.
B.
Therefore, the next inquiry is whether Constable Tejeda acted
objectively reasonably. Although the Constable contends he did so
act, he did not present this issue to the district court. (Nor
does he contest Lacey’s assertion that the issue was not raised
there.) Along this line, the district court did not mention, much
less rule on, objective reasonableness. As stated, we generally do
not consider issues raised for the first time on appeal; we will
not do so here.
6
III.
For the foregoing reasons, the qualified immunity denial is
AFFIRMED.
7
