Case: 13-41343      Document: 00512726379         Page: 1    Date Filed: 08/07/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                    No. 13-41343                                FILED
                                  Summary Calendar                         August 7, 2014
                                                                           Lyle W. Cayce
                                                                                Clerk
ELMER COX,

                                                 Plaintiff - Appellee
v.

JIM KAELIN, Individually,

                                                 Defendant - Appellant




                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:12-CV-339


Before DENNIS, CLEMENT, and GRAVES, Circuit Judges.
PER CURIAM:*
       Elmer Cox, a former employee of the Nueces County Sheriff’s
Department, brought suit pursuant to 42 U.S.C. § 1983 against Jim Kaelin,
the Sheriff of Nueces County, Texas, asserting that Kaelin violated his First
Amendment rights. Cox alleges that Kaelin retaliated against him in response
to his support for Kaelin’s opponent in the 2012 race for Nueces County Sheriff
and his involvement in the political process, in violation of his First


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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Amendment rights to free speech and association. The district court denied
Kaelin’s motion to dismiss, in which he asserted that Cox had failed to state a
claim on which relief could be granted and raised the defense of qualified
immunity. Kaelin brings this interlocutory appeal of that judgment. For the
reasons that follow, we AFFIRM the judgment of the district court.
                              BACKGROUND
                                      I.
      In Cox’s Fifth Amended Complaint, he alleges the following:
      Prior to his termination, Cox had been employed by the Nueces County
Sheriff’s Department for over twenty years. During the last ten years of his
employment, he had served as the President of the Nueces County Sheriff
Officers’ Association, a Political Action Committee (“PAC”).     In early May
2012, Kaelin—who was the Sheriff of Nueces County at the time—became
upset that Thomas Burnside—who was employed by the Sheriff’s Department
and was a chairman of the PAC—began supporting Kaelin’s opponent in the
upcoming election. The PAC itself, as well as Cox, also seemed to be supporting
Kaelin’s opponent, which apparently also upset Kaelin.
      Sometime around May 15, 2012, Kaelin advised Cox that he should
remove Burnside as a chairman of the PAC, in an apparent attempt to sway
the PAC to support his candidacy. Kaelin informed Cox that Burnside was
going to be transferred to a position working in the Nueces County Jail, which
he reportedly characterized as a demotion. Kaelin threatened the same action
against Cox, who at the time had been working on a task force for the U.S.
Drug Enforcement Administration (“DEA”), should he ignore Kaelin’s request
to remove Burnside from his chairmanship. Kaelin presented Cox with an
ultimatum, stating he had until May 18, 2012 to respond to Kaelin’s request.
Cox thereafter suspended the PAC for a short period of time in order to
determine his course of action and to fill vacancies. However, Cox reinstated
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the PAC, which resumed its activities and held a meeting sometime around
May 28, 2012.
      On May 31, 2012, Cox was summoned into his supervisor’s office, where
he was told to call Kaelin on his cell phone. During the phone conversation,
Kaelin allegedly became very upset, accused Cox of lying to him, and
remarked, “Remember what I said I was going to do?”            Kaelin thereafter
reassigned Cox to a position in the jail, giving him 48 hours to vacate his
position on the DEA Task Force. Cox characterizes this reassignment as a
demotion. As a result of his transfer to the jail, Cox’s vehicle was taken away,
including the gas, mileage, and insurance benefits that came with it.          In
addition, Cox was no longer eligible for overtime pay, which amounted to over
$10,000 per year. Cox was initially assigned to work the “graveyard shift,”
which encompasses early morning hours, and remained in that position for an
extended period of time.
      On March 28, 2013, Cox’s employment with the Nueces County Sheriff’s
Department was terminated.         Cox presumes that his employment was
terminated due to his dissemination of a recorded conversation, wherein
Kaelin threatened an officer who has since resigned from his position. At the
time, Cox was working in the jail along with Burnside and another employee
who apparently was previously assigned to the DEA Task Force, but who was
also reassigned by Kaelin to jail duty for political-related reasons.
      Cox avers that his involvement with the PAC, Burnside, or the election
was in no way associated with his employment, and he did not discuss these
matters during work hours. Cox asserts that his involvement with the political
process and his known support for Kaelin’s opponent in the upcoming election
were the causes of his demotion to a position in the jail, as well as his eventual
termination.


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                                       II.
      Cox then filed this § 1983 action in federal court, naming both Nueces
County, Texas, a municipality, and Kaelin, individually, as defendants. Cox
asserted that the defendants maintain a pattern or practice of depriving
persons of their First Amendment rights, and that defendants retaliated
against him in violation of the First Amendment because he engaged in free
speech and association in regards to the political process.
      In response, Kaelin filed a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6) for a failure to state a claim upon which relief can be
granted, in addition to raising the defense of qualified immunity. In support
of this motion, Kaelin argued that: (1) Cox’s pleadings were conclusory and did
not meet the necessary pleading standard to survive a motion to dismiss; (2)
Cox had not pleaded a policy on which his claim was based; (3) Cox had not
pleaded sufficient facts to support a claim of retaliation for engaging in conduct
protected by the First Amendment; and (4) Cox’s pleadings failed to negate
Kaelin’s qualified immunity defense. The matter was referred to a United
States Magistrate Judge, who found that Cox had pleaded sufficient facts to
support all of the required elements of a First Amendment retaliation claim
and had pleaded sufficient facts to negate Kaelin’s qualified immunity defense
at the motion to dismiss stage. The Magistrate Judge further found that the
issue of whether there was a practice or policy violative of the First
Amendment was not relevant to the cause of action against Kaelin.            The
Magistrate Judge therefore recommended that Kaelin’s motion to dismiss be
denied. The district court thereafter overruled all of Kaelin’s objections to the
Magistrate Judge’s recommendation, adopted its findings and conclusions, and
denied Kaelin’s motion to dismiss. Kaelin then filed a timely notice of appeal.




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                                 DISCUSSION
                                        I.
      In his brief, Cox asserts that this Court lacks jurisdiction to review the
district court’s denial of Kaelin’s motion to dismiss, arguing that the district
court did not reject Kaelin’s defense of qualified immunity, but rather made a
“preliminary determination” that Cox had pleaded sufficient facts that, if
proven, would negate Kaelin’s qualified immunity defense. However, a district
court order denying a government official’s claim of qualified immunity is
immediately appealable under the collateral-order doctrine, provided “it turns
on an issue of law.” Ashcroft v. Iqbal, 

, 672 (2009). A district court
order ruling on the sufficiency of the pleadings on the basis of qualified
immunity “turns on an issue of law,” as “evaluating the sufficiency of a
complaint is not a ‘fact-based’ question of law.” 

Therefore, the denial
of the motion to dismiss in this case is “an order rejecting qualified immunity
at the motion-to-dismiss stage of a proceeding,” which gives this Court
jurisdiction to review that order pursuant to the collateral-order doctrine. 

Our jurisdiction in this case is not limited to reviewing the rejection of
the qualified immunity defense; we also have jurisdiction to review whether
the pleadings sufficiently state a claim upon which relief can be granted. 

(holding that the Court of Appeals had jurisdiction to review the
sufficiency of the pleadings because “the sufficiency of respondent’s pleadings
is both inextricably intertwined with and directly implicated by the qualified
immunity defense” (internal quotation marks and citations omitted)).
                                        II.
      At the outset, Kaelin complains generally that the Magistrate Judge
relied on matters outside of the pleadings in denying his motion to dismiss;
namely, Kaelin asserts that the Magistrate Judge relied on the pleadings from
a separate action against Kaelin. Kaelin argues that this is reversible error
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without any further elaboration. However, “federal courts are permitted to
refer to matters of public record when deciding a 12(b)(6) motion to dismiss,”
so long as the court does not rely on those matters when deciding the motion.
Davis v. Bayless, 

, 372 n.3 (5th Cir. 1995) (citing Cinel v. Connick,

, 1343 n.6 (5th Cir.1994)). If the Magistrate Judge did in fact rely
on pleadings from a separate case, the district court “should have converted
the motion to dismiss into a motion for summary judgment, given the parties
notice, and then considered all of the evidence presented.” Scanlan v. Tex.
A&M Univ., 

, 539 (5th Cir. 2003). “Only if it appears that the
district court did rely on matters outside the pleadings should an appellate
court treat the dismissal as a summary judgment.” Fernandez-Montes v. Allied
Pilots Ass’n, 

, 283 (5th Cir. 1993) (emphasis in original). There is
nothing in the Magistrate Judge’s Memorandum and Recommendation to
suggest that the Magistrate Judge placed any reliance on facts outside the
pleadings, including those alleged by Kaelin, in arriving at his conclusions; all
of the Recommendation’s findings are fully supported by the pleadings
themselves. Further, this Court must give credence to the district court’s
explicit statement that the Recommendation “is based strictly on the
pleadings.” See 

v. Associated Milk Producers, Inc., 

, 414-15 (5th Cir. 1980)). Therefore, the district court committed no error
and the Court will review the denial of the motion to dismiss solely on the basis
of the pleadings.
                                      III.
      We review the district court’s denial of a motion to dismiss a complaint
on the basis of qualified immunity de novo. Atteberry v. Nocono Gen. Hosp.,

, 252 (5th Cir. 2005). “In applying this standard, we accept all
well-pleaded facts as true, viewing them in the light most favorable to the
plaintiff.” 

marks omitted).
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      A pleading must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief,” FED. R. CIV. P. 8(a)(2), “in order
to give the defendant fair notice of what the . . . claim is and the grounds upon
which it rests,” Bell Atlantic Corp. v. Twombly, 

, 555 (2007)
(quoting Conley v. Gibson, 

, 47 (1957)) (internal quotation marks
omitted). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss
does not need detailed factual allegations, a plaintiff’s obligation to provide the
grounds of his entitlement to relief requires more than labels and conclusions,
and a formulaic recitation of the elements will not do.” 

marks, brackets, and citations omitted).
      “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on
its face.” 

(internal quotation marks omitted). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” 

a complaint states a plausible
claim for relief will . . . be a context-specific task that requires the reviewing
court to draw on its judicial experience and common sense.” 

“But
where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged—but it has not
shown—that the pleader is entitled to relief.” 

marks
omitted).
      In order for a public employee to recover for a free speech retaliation
claim, the plaintiff must satisfy four elements: “(1) the plaintiff must suffer an
adverse employment decision; (2) the plaintiff’s speech must involve a matter
of public concern; (3) the plaintiff’s interest in commenting on matters of public
concern must outweigh the defendant’s interest in promoting efficiency; and


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(4) the plaintiff’s speech must have motivated the defendant’s actions.” Finch
v. Fort Bend Indep. School Dist., 

, 563 (5th Cir. 2003).
      Cox has pleaded a First Amendment retaliation claim with sufficient
facts to render it plausible on its face. It is plausible from the facts Cox alleges
that his reassignment to a position in the jail, as well as his discharge, were
adverse employment decisions. “Adverse employment actions are discharges,
demotions, refusals to hire, refusals to promote, and reprimands.”
Benningfield v. City of Houston, 

, 376 (1998).           Cox’s alleged
discharge is clearly an adverse employment decision. 

also plausible
that his reassignment to the jail was an adverse employment decision, as he
alleges that Kaelin himself referred to Burnside’s reassignment to the jail as a
demotion. See 

has previously held that transfers to jail duty,
even without a decrease in pay, can be adverse employment decisions because
“jobs in the jail are not as interesting or prestigious as jobs in the law
enforcement section.” Click v. Copeland, 

, 110 (5th Cir. 1992). We
made that finding only after reviewing the evidence presented at trial, and
thus we can only make such a finding in this case after further facts have been
adduced. However, it is certainly plausible that a position in the jail is less
prestigious or interesting than Cox’s previous position on a DEA task force.
Thus, it is plausible from the facts alleged, including the loss of various
benefits, that Cox’s reassignment to the jail was indeed an adverse
employment decision.
      Regarding the second element of a First Amendment retaliation claim,
we must determine whether it is plausible from the pleadings that Cox “spoke
as a citizen on a matter of public concern.” Garcetti v. Ceballos, 

,
418 (2006). The first step of this inquiry questions whether Cox engaged in
First Amendment speech as a citizen or in his role as a public employee. See
Lane v. Franks, 

, 2378-80 (2014). It is clear that Cox did not
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participate in the PAC and support for Kaelin’s opponent in the course of his
ordinary duties as a public employee; on the contrary, Kaelin specifically
pleaded that he never discussed his involvement with the PAC or the upcoming
election during work hours.      Thus, it is clear that Cox engaged in these
activities as a citizen.   His role as a citizen is impacted neither by the
relationship between the PAC—which is an association of sheriff officers—and
his employment as a deputy sheriff, nor by the fact that he was supporting the
opponent of his superior officer in an upcoming election, as “the critical
question . . . is whether the speech at issue is itself ordinarily within the scope
of an employee’s duties, not whether it merely concerns those duties.” 

        Next, we must determine whether the speech involved a matter of public
concern. See 

“Speech involves matters of public concern when it
can be fairly considered as relating to any matter of political, social, or other
concern to the community, or when it is a subject of legitimate news interest;
that is, a subject of general interest and of value and concern to the public.”

marks omitted). “The inquiry turns on the ‘content,
form, and context’ of the speech.” 

v. Myers, 

,
147-48 (1983)).    The content—support for Kaelin’s opponent—and form—
participation in a PAC—of the speech at issue clearly support the notion that
it involved matters of public concern, as we have previously held that “there
can be no question that . . . associating with political organizations and
campaigning for a political candidate[] related to a matter of public concern.”
Vojvodich v. Lopez, 

, 885 (5th Cir. 1995). The context of the speech,
insofar as it occurred in the midst of an upcoming local election, bolsters the
conclusion that Cox’s speech involved a matter of public concern.          Kaelin
argues that Cox has not specifically pleaded any facts that suggest he had
actually engaged in verbal speech, and that this omission belies any claim that
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Cox engaged in protected speech. However, we have previously held that
political associations qualify as speech under the First Amendment, and thus
Kaelin’s argument is meritless. See Steadman v. Texas Rangers, 

,
367 (5th Cir. 1999) (stating that verbal enunciation of political views is not
required to receive First Amendment protection; political association is
sufficient in itself). Therefore, it is plausible from the facts alleged that Cox
engaged in speech in the role of a citizen on matters of public concern.
      Kaelin further argues that the district court erred in not conducting a
balancing analysis, weighing Cox’s interest in commenting on matters of public
concern against the defendant’s interest in promoting efficiency in the
workplace, in order to determine the sufficiency of the pleadings in regards to
the third element. Kaelin cites Kennedy v. Tangipahoa Parish Library, 

(5th Cir. 2000), among various other authorities, in support of the
proposition that such a balancing inquiry must be made at the motion to
dismiss stage of a proceeding.       However, Kennedy explicitly opposes this
assertion, stating, “The third element, being the factually-sensitive balancing
test that it is, implicates only the summary judgment, not failure to state a
claim, analysis.” Kennedy v. Tangipahoa Parish Library, 

, 366
n.9 (5th Cir. 2000) (abrogated on other grounds by 

)).
Therefore, such a balancing inquiry is not warranted at this stage of the
proceedings, and it suffices that Cox’s pleadings, in which he avers he did not
discuss his political affiliations at work, render it plausible that his interest in
commenting on matters of public concern outweighed Kaelin’s interest in
promoting efficiency in the workplace.
       Cox has also pleaded sufficient facts to support his claim that his
transfer to the jail and subsequent termination were motivated by his political
activity. Cox specifically pleads that Kaelin threatened a transfer to the jail
should Cox ignore his request to remove Burnside as chairman of the PAC.
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                                  No. 13-41343
Cox additionally pleads that Kaelin referenced that previous threat in the
phone call during which Kaelin actually transferred Cox to the jail.
Additionally, Cox pleads that his support for Kaelin’s opponent was “known,”
and thus it is plausible that his political activity and “known support” for
Kaelin’s opponent motivated his eventual termination, aside from Cox’s
further claim that his termination was presumably due to the dissemination
of a recording. Kaelin argues that the ten-month lapse of time between Cox’s
transfer and his termination undermines any claim that his termination was
motivated by his political activity. However, Kaelin’s argument presupposes
that Cox’s political activity and support for Kaelin’s opponent ceased upon
being reassigned to the jail. The pleadings support the inference that Cox’s
political activity continued following his reassignment, and thus it is plausible
that his termination was also motivated by his political activity. Whether
Cox’s political activity did indeed continue following his transfer is a question
better suited for determination at a later stage of the proceedings. Therefore,
it is plausible from Cox’s pleadings that both his transfer to the jail and
subsequent termination were motivated by his political activity.
      Accordingly, Cox’s complaint “contain[s] sufficient factual matter . . . to
state a claim to relief that is plausible on its face,” as it is plausible from the
complaint that Cox can succeed on all the elements of a First Amendment
retaliation claim, and it therefore withstands Kaelin’s motion to dismiss.

.
                                       IV.
      Regarding Kaelin’s claimed defense of qualified immunity, he argues
that a heightened pleading standard applies when the defense of qualified
immunity is asserted, relying on Schultea v. Wood, 

(5th Cir.
1995). Kaelin’s argument, however, misreads this Court’s opinion in that case.
In Schultea, we held that “a plaintiff suing a public official under § 1983 [must]
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file a short and plain statement of his complaint, a statement that rests on
more than conclusions alone.” Schultea v. Wood, 

, 1433 (5th Cir.
1995). We further held that a district court “may, in its discretion, insist that
a plaintiff file a reply tailored to an answer pleading the defense of qualified
immunity.” 

The power to order such a detailed reply is based
on the authority of Federal Rule of Civil Procedure 7, and was not derived from
the heightened pleading standards espoused in Federal Rule of Civil Procedure
9(b). 

court, in its discretion, did not insist that Cox file such a
reply, as it found that he had met his burden to negate the defense of qualified
immunity because he had alleged sufficient facts in the short and plain
statement that Schultea initially requires. We review that decision de novo.

.
      In order to negate the defense of qualified immunity, Cox must plead
sufficient facts to make it plausible that Kaelin’s conduct: (1) violated a “clearly
established federal constitutional right;” and (2) was not “objectively
reasonable in light of clearly established law.” Nunez v. Simms, 

,
387 (5th Cir. 2003). The law is clearly established that a public employee may
be neither discharged nor demoted in retaliation for exercising his First
Amendment Rights. More specifically, the Supreme Court has consistently
held that governmental officials are forbidden from discharging public
employees for their political affiliations. See Rutan v. Republican Party of Ill.,

(1990); Branti v. Finkel, 

(1980); Elrod v. Burns, 

(1976). Further, we have held that “[t]he law was established clearly
enough in this circuit [as far back as] January 1988 that a reasonable officer
should have known that if he retaliated against an employee for exercising his
First Amendment rights, he could not escape liability by demoting and
transferring the employee rather than discharging him.” 

. Kaelin argues, citing Ashcroft v. al-Kidd, 

(2011), that
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these statements of law are impermissibly general and thus do not constitute
clearly established law. This argument, wherein Kaelin attempts to equate
the fairly specific principle barring the discharge or demotion of public
employees for exercising their First Amendment rights with the broad notion
“that an unreasonable search or seizure violates the Fourth Amendment,”
which the Court in al-Kidd cited as an overly general proposition, is, at best,
baseless.   Therefore, it is plausible from the facts alleged that Kaelin violated
a clearly established constitutional right and his conduct was objectively
unreasonable. Accordingly, on the face of the pleadings, Cox has negated
Kaelin’s qualified immunity defense for the purposes of this stage of the
proceedings.
                                CONCLUSION
      For the foregoing reasons, the district court’s denial of Kaelin’s motion
to dismiss is AFFIRMED.




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