IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-41344

THOMAS BURNSIDE, 

 Plaintiff - Appellee

v.

JIM KAELIN, Individually, 

 Defendant - Appellant

Appeal from the United States District Court 

for the Southern District of Texas

Before JOLLY, HIGGINBOTHAM and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This interlocutory appeal arises from the denial of qualified immunity at 

the motion-to-dismiss stage. Plaintiff Burnside, a deputy sheriff, filed this 

§ 1983 action alleging that, because he did not support defendant-Sheriff 

Kaelin’s re-election bid, he was punitively transferred, and later fired, for 

exercising his First-Amendment rights to engage in free speech and 

association. Sheriff Kaelin appeals the district court’s denial of his motion to 

dismiss Burnside’s complaint based on qualified immunity. We AFFIRM in 

part, REVERSE in part, and REMAND.

United States Court of Appeals

Fifth Circuit

FILED

December 9, 2014

Lyle W. Cayce

Clerk

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No. 13-41344

I. Background

Because this appeal arises from the denial of a motion to dismiss, we 

review the alleged facts in the light most favorable to plaintiff Burnside. Cf.

Johnson v. Jones, 515 U.S. 304 (1995) (noting the limited scope of our appellate 

jurisdiction over an interlocutory appeal from the denial of qualified 

immunity).

Plaintiff Burnside worked as a sergeant for the Nueces County Sheriff’s 

Department (“the Department”). For many years, Burnside was assigned to 

the Department’s patrol division. Burnside also served as chairman of a law 

enforcement political action committee (“PAC”). Burnside maintained his 

association with the PAC and the campaign separate and distinct from his 

employment with the Department. 

In January 2012, Sheriff Kaelin was up for re-election in a contested 

race. Sometime in January 2012, defendant Kaelin approached Burnside 

while Burnside was on duty and told him that the PAC should support Kaelin’s 

re-election bid. Burnside said that he would not treat Kaelin differently from 

any other candidate and that the PAC’s members would vote on the 

endorsement free from outside pressure. A few days later, Sheriff Kaelin told 

Burnside that Kaelin would move him to jail duty if the PAC did not support 

Kaelin’s candidacy. 

Burnside personally supported Kaelin’s opponent, and Kaelin knew this. 

Moreover, the PAC did not support or endorse Kaelin, a fact that was common 

knowledge by January 12, 2012. 

Three weeks after the PAC failed to endorse Kaelin, Kaelin transferred 

Burnside from the Department’s patrol division to the jail. The jail assignment 

was “an extremely less desirable position” than his patrol position. Sheriff 

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Kaelin and all those in Burnside’s position understood Burnside’s transfer to 

jail duty to be a demotion rather than a reassignment. 

Burnside continued to work at the jail for more than a year. In March 

2013, his employment was terminated because of the dissemination of a 

recording containing a threat from Sheriff Kaelin against another officer. 

Based on these facts, Burnside filed this § 1983 action against the 

Sheriff’s Department and Sheriff Kaelin (in his individual capacity). The 

complaint alleges that the defendants (the Sheriff and Sheriff’s Department) 

violated Burnside’s First-Amendment rights by retaliating against him after 

he exercised his speech and association rights. Without answering, both 

defendants moved to dismiss the complaint pursuant to Rule 12(b)(6), with 

Kaelin asserting the defense of qualified immunity. The magistrate judge 

recommended denying those motions. Kaelin objected on several grounds. The 

district court overruled those objections, then summarily adopted the 

magistrate judge’s recommendation. 

Burnside brings this interlocutory appeal challenging the denial of 

qualified immunity.1

II. Legal Principles

Burnside bases his § 1983 claim on Kaelin’s alleged violation of his FirstAmendment speech and association rights. To establish a First-Amendment, 

free-speech retaliation claim under § 1983, a public employee must show that 

(1) she suffered an adverse employment action; (2) her speech involved a 

matter of public concern; (3) her interest in commenting on matters of public 

1 We have appellate jurisdiction over this interlocutory appeal “only to the extent that 

[the denial of qualified immunity] turns on an issue of law.” Cf. Juarez v. Aguilar, 666 F.3d 

325, 331 (5th Cir. 2011) (stating rule in summary judgment context). We have no jurisdiction 

over arguments unrelated to the denial of qualified immunity or over factual disputes, so we 

do not address any such arguments from Kaelin’s brief on appeal. 

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concern outweighed the defendant’s interest in promoting workplace efficiency; 

and (4) her speech was a substantial or motivating factor in the defendant’s 

adverse employment action. DePree v. Saunders, 588 F.3d 282, 286–87 (5th 

Cir. 2009); Click v. Copeland, 970 F.2d 106, 113 (5th Cir. 1992); see also West 

v. Atkins, 487 U.S. 42, 48 (1988) (stating that a plaintiff must also show that 

the alleged constitutional deprivation was committed by a person acting under 

color of law). A First-Amendment, “association” claim has similar elements 

but requires “engagement in a constitutionally protected activity” (rather than 

speech) and omits the second element (i.e., that the protected act involve a 

matter of public concern). See Boddie v. City of Columbus, Miss., 989 F.2d 745, 

747 (5th Cir. 1993). 

Sheriff Kaelin asserts that he is entitled to qualified immunity. The 

basic steps of the qualified-immunity inquiry are well-known: a plaintiff 

seeking to defeat qualified immunity must show that (1) the official violated a 

statutory or constitutional right and (2) the right was clearly established at the 

time of the challenged conduct. Morgan v. Swanson, 659 F.3d 359, 370 (5th 

Cir. 2011) (en banc); Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010) 

(“Once a defendant invokes qualified immunity, the burden shifts to the 

plaintiff to show that the defense is not available.”). 

III. Discussion

Burnside’s complaint alleges First-Amendment violations for two 

separate events: (1) his transfer in 2012 and (2) the termination of his 

employment in 2013. Taking the alleged facts in plaintiff Burnside’s favor, we 

hold that he has alleged a § 1983 claim concerning his 2012 transfer, but we 

further hold that he has failed to state a constitutional violation with respect 

to his 2013 termination. 

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A. Transfer

With regard to Burnside’s retaliatory transfer claim, Kaelin argues that 

the complaint fails to allege a First-Amendment violation because (1) the 

transfer was not an adverse employment action; (2) there is no causal link 

between Burnside’s protected acts and the transfer; and (3) the complaint does 

not provide enough facts to perform the Pickering-balancing test. We address 

each argument in turn. 

First, Kaelin argues that Burnside’s transfer from the patrol division to 

the jail was not sufficiently “adverse.” This Circuit has clearly established that 

that a retaliatory, demotion-like transfer may constitute an adverse 

employment action under 42 U.S.C. § 1983. See, e.g., Serna v. City of San 

Antonio, 244 F.3d 479, 483 (5th Cir. 2001); Hunt v. Rapides Healthcare Sys., 

LLC, 277 F.3d 757, 770 (5th Cir. 2001) (“A job transfer may qualify as an 

‘adverse employment action’ for the purpose of a First Amendment retaliation 

claim under 42 U.S.C. § 1983, if the change makes the job ‘objectively worse.’ ”); 

Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (“Transfers can 

constitute adverse employment actions if they are sufficiently punitive . . . or 

if the new job is markedly less prestigious and less interesting than the old 

one.” (citations omitted)); Click, 970 F.2d at 110–11. A transfer can be adverse 

within the meaning of § 1983 “even without an accompanying cut in pay or 

other tangible benefits” if the transfer is objectively “equivalent to” one of the 

commonly accepted adverse actions (e.g., discharges, demotions, or

reprimands). Serna, 244 F.3d at 483 (summarizing the then-current state of 

the law regarding transfers as “adverse employment actions”). For example, 

where two plaintiffs ran for sheriff against the defendant-incumbent, failed to 

unseat the incumbent sheriff, and were subsequently transferred by that 

sheriff from law enforcement positions to jail guards, we held that the jail-duty 

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transfers were “demotion-like” and, thus, adverse employment actions because 

the new jobs were less interesting, less prestigious, and provide less 

opportunity for promotion. See Click, 970 F.2d at 109–11.

Here, Sheriff Kaelin took Burnside off the streets and placed him in the 

jail. The complaint alleges that the transfer was “typically considered by all in 

[Burnside’s] position to be . . . a demotion.” Burnside alleged that Sheriff 

Kaelin himself viewed the transfer as a demotion. One reasonable inference is 

that Kaelin initiated the transfer to punish Burnside for not supporting Kaelin 

in the 2012 election. This inference is precisely the one we drew in Click, where 

we found a transfer from law enforcement to jail guard was objectively 

“demotion-like.” 970 F.2d at 109–11. Given the facts and reasonable 

inferences drawn from Burnside’s complaint, his transfer alleges an adverse 

employment action under 42 U.S.C. § 1983.

Next, Kaelin argues that the complaint does not allege sufficiently a 

causal link between Burnside’s protected acts and the transfer. The alleged 

fact of the causal link is readily apparent for a fact-finder to see. Viewed in 

Burnside’s favor, the complaint alleges that twice in January 2012, Kaelin told 

Burnside that the PAC should support Kaelin’s re-election bid. During the 

second encounter, Kaelin threatened to transfer Burnside to jail duty if the 

PAC did not support Kaelin’s candidacy. By mid-January, according to the 

allegations, it was common knowledge that the PAC did not support or endorse 

Kaelin, and Kaelin knew that Burnside personally supported Kaelin’s 

opponent. Within three weeks, Kaelin followed through with his threat and

transferred Burnside to the jail. These allegations are sufficient to allow a 

plausible inference that Kaelin knew of the non-endorsement before he 

initiated Burnside’s transfer and that the non-endorsement caused the jailduty transfer. See Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th 

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Cir. 2001) (stating that the protected conduct need only be a motivating factor 

in the adverse employment action).

Finally, Kaelin argues that the complaint does not provide sufficient 

facts to perform the Pickering-balancing test.2 In particular, Kaelin argues 

that the complaint does not provide facts sufficient to determine whether 

Burnside’s membership and leadership role in the PAC outweighed the 

Department’s interest in workplace efficiency.3 In stating a prima facie case 

at the motion-to-dismiss stage of a case, there is a rebuttable presumption that 

no balancing is required to state a claim. See Kennedy v. Tangipahoa Parish 

Library Bd. of Control, 224 F.3d 359, 366 n.9 (5th Cir. 2000) (stating that the 

requirement to balance an employee’s interest in his First-Amendment speech 

against the employer’s interest in promoting workplace efficiency “implicates 

only the summary judgment [analysis], not [a Rule 12(b)(6)] analysis”), 

abrogated in part by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The 

rebuttable presumption applies because reasonable inferences drawn from a 

complaint, obviously drafted by the aggrieved employee, will generally lead to 

a plausible conclusion that the employee’s interest in commenting on matters 

of public concern outweighs the employer’s interest in workplace efficiency. 

The presumption also adheres because a plaintiff-employee is not in a position

to plead defensive reasons for its employment decisions. Moreover, this 

presumption does not prejudice the employer because it may quickly overcome 

the presumption by invoking the procedure for resolving qualified-immunity 

disputes at the motion-to-dismiss stage. See Schultea v. Wood, 47 F.3d 1427 

2 Pickering v. Board of Educ., 391 U.S. 563 (1968). This is sometimes referred to as 

Pickering-Connick balancing or McBee-Pickering-Connick balancing. See, e.g., Click, 970 

F.2d at 112.

3 This argument addresses the third prong of Burnside’s free-speech retaliation claim; 

it does not affect Burnside’s association claim because that claim has no balancing-test 

requirement.

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(5th Cir. 1995) (en banc) (setting forth a procedure—through the use of a Rule 

7 reply—to resolve factual disputes in cases where qualified immunity applies). 

Here, Kaelin failed to invoke the Shultea procedure, and nothing in Burnside’s 

complaint indicates that Burnside’s interest in commenting on the election was 

surpassed by Kaelin’s interest in workplace efficiency. Thus, the complaint’s 

allegations are sufficient to survive Kaelin’s motion to dismiss. 

Given the facts and reasonable inferences drawn from Burnside’s 

complaint, he has alleged a retaliatory, demotion-like transfer following the 

non-endorsement of Sheriff Kaelin in 2012, in violation of his FirstAmendment right of free speech and association. And, the law is clearly 

established that such a retaliatory action, if proved, violates the First 

Amendment. Therefore, Kaelin is not entitled to qualified immunity at this 

motion-to-dismiss stage for the 2012 transfer.

B. Termination

As alleged in the complaint, Burnside’s termination resulted from the 

dissemination of a tape recording that contained Sheriff Kaelin’s threat 

against another officer. The complaint reveals no details about the recording, 

its dissemination, or Kaelin’s purported threat. And, the complaint lacks 

allegations sufficient to allow any reasonable inferences about such details as 

might be required to state a prima facie case. Without some direct allegation 

or reasonable inference that Burnside was involved with the recording in some

way, there can be no violation of Burnside’s First-Amendment rights based on 

the recording because we are missing a critical element of the claim: some 

connection to a constitutionally protected act.

The only protected activities in Burnside’s complaint occurred in 

January 2012, when Burnside and the PAC he chaired failed to endorse Kaelin. 

But that occurred more than thirteen months before his employment was 

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terminated in March 2013. The complaint alleges no other facts linking the 

two events. Without such facts, we cannot plausibly infer that the termination 

was causally related to Burnside’s First-Amendment conduct. And, without a 

causal link between the termination and Burnside’s protected activities, there 

can be no claim of a constitutional violation as a matter of law. Consequently, 

Kaelin is entitled to qualified immunity on Burnside’s termination claim.

IV. Conclusion

For the reasons above, we REVERSE the district court’s denial of 

qualified immunity as to the termination claim and AFFIRM the denial of

qualified immunity as to the transfer claim. We REMAND for further 

proceedings consistent with this opinion.

REVERSED in part; AFFIRMED in part; and REMANDED.

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