1 Senior Circuit Judge of the Eleventh Circuit, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 90–5624.

Larry CLICK and Don Falcon, Plaintiffs–Appellants,

v.

Harlon COPELAND, Sheriff and Bexar County, Texas, acting By and Through its county judge

Tom Vickers and county commissioners, Defendants–Appellees.

Sept. 1, 1992.

Appeal from the United States District Court for the Western District of Texas.

Before HILL, 1 KING, and DAVIS, Circuit Judges.

W. EUGENE DAVIS, Circuit Judge:

Two sheriff's deputies sued the sheriff and the county under § 1983 alleging that their First

Amendment rights were violated when the sheriff transferred them to less-des irable positions in

retaliation for announcing their candidacy for the sheriff's office. The district court directed a verdict

in favor of both the sheriff and the county on gro unds t hat t he sheriff was entitled to qualified

immunity and that the county was not otherwise liable. We vacate and remand.

I.

During all times relevant to this suit, defendant-appellee Harlon Copela nd was Sheriff of

Bexar County, and plaintiffs-appellants Larry Click and Tom Falcon were sheriff's deputies. Deputy

Click was a civil warrants officer and Deputy Falcon was the chief criminal district court bailiff. Both

jobs are classified in the law enforcement section of the sheriff's department, but ne ither involves

policymaking.

Click and Falcon decided to run against Copeland for sheriff. In January 1988, around the

day Fa lco n announced his candidacy, but seven months after Click announced his, Copeland2 Copeland ultimately transferred the plaintiffs back to their previous duties in July 1989. This

re-transfer took place after plaintiffs sought a preliminary injunction to compel such action, but

before the district court ruled on the motion. transferred Click and Falcon from their positions in the law enforcement section to positions as jail

guards in the detention center. The t ransfers were to be for an indefinite duration. 2 Although the

transfers did not result in a decrease in pay, each man considered his transfer a demotion.

Click and Falcon filed suit in stat e court against Copeland, in his individual and official

capacities, Bexar County, and the county commissioners alleging vari ous state and federal

constitutional violations. The federal component of the complaint sought recovery under 42 U.S.C.

§ 1983 and alleged essentially that defendants took adverse employment actions against the plaint iffs

in retaliation for exercising their First Amendment rights. Defendants later removed the suit to federal

court.

The case was tried to a jury in February 1990. At the close of plaintiffs' case, the district court

granted defendants' motions for directed verdicts. The district court ruled that Sheriff Copeland was

entitled to qualified immunit y and that the plaint iffs had proffered insufficient evidence to visit liabilit y

on the County commissioners. After their motion for a new trial was denied, plaintiffs timely

appealed.

II.

Appellants argue first that the district co urt erred in concluding that Sheriff Copeland is

entitled to qualified immunity on those claims against him in his individual capacity.

"A publi c o fficial is protected by qualified immunity if a reasonable officer would have

believed that his actions met constitutional standards. Significantly, the question is not whether the

law was settled, viewed abstractly, but whether, measure d by an objective standard, a reasonable

officer would know that his action is illegal." M atherne v. Wilson, 851 F.2d 752, 756 (5th Cir.1988)3 42 U.S.C. § 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or

usage, of any State ... subjects, or causes to be subjected, any citizen of the United

States ... to the deprivation 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. (f ootnote omitted) (citing Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 3039, 97

L.Ed.2d 523 (1987)). Thus we must decide whether it was "clearly established" in January

1988—when Copeland transferred Click and Falcon—that it was unconstitutional for a sheriff to

transfer a nonpolicymaking employee to another section in retaliation for that employee's announced

candidacy for sheriff. We divide the analysis into two parts: whether it was clearly established (1)

that transfers , as distinguished from discharges, were actionable, and (2) that political activity, as

distinguished from political belief, was protected.

A.

Sherif f Copeland contends that it was not clearly established in January 1988 that an

intradepartmental transfer, even if retaliatory, could implicate the First Amendment. Copeland argues

that it was not until Matherne v. Wilson, 851 F.2d 752 (5th Cir.1988), decided several months after

the events of this case, that a reasonable sheriff would have known that he could not disc h arge a

nonpolicymaking employee because of that employee's political activity. It follows, he suggests, that

if the law were this unclear about discharges, then a reasonable sheriff certainly would not know that

retaliatory transfers were taboo. In essence Copeland concludes that transfers alone do not "deprive"

employees of any rights or privileges, a prerequisite to § 1983 liabilit y. 3 The di stri ct court agreed

with Copeland's analysis. We disagree.

Copeland has provided no authority that supports his discharge/transfer distinction. M ather n e

does not discuss such a distinction. Nor is it accurate to say that Matherne created new law when

it concluded that an employer could be held liable if he discharged an employee for constitutionally

impermissible reasons. In 1968 the Supreme Court concluded that even the t hreat of discharge canbe a potent means of chilling the exercise of constitutional rights. See P ickering v. Board of Educ.,

391 U.S. 563, 574, 88 S.Ct. 1731, 1737, 20 L.Ed.2d 811 (1968). Here, Deputy Click testified to a

conversa t ion he had with Sheriff Copeland in December 1987 in which Copeland allegedly said:

"After the primary I'm firing the hell out of you." The jury is entitled to find that Copeland threatened

Click with discharge. If so, then this alone would implicate Click's First Amendment rights.

But even if no weight is accorded Click's testimony that Copeland threatened to discharge

him, there is sufficient evidence of other "deprivations" of plaint iffs' rights under § 1983. "Where ...

important conditions of employment are involved, a public employee will not be foreclosed from §

1983 relief merely because the impermissible retaliation did not result in the te rminat ion of his

employment." B ickel v. Burkhart, 632 F.2d 1251, 1255 n. 6 (5th Cir.1980). In P erry v. Sindermann,

the Supreme Court made clear that

even though a person has no "right' to a valuable governmental benefit and even though the

government may deny him the benefit for any number of reasons, there are some reasons upon

which the government may not rely. It may not deny a benefit t o a person on a basis that

infringes his constitutionally protected interests—especially, his interest in freedom of speech.

For if the government could deny a benefit to a person because of his constitutionally

protected speech or associations, his exercise of those freedoms would in effect be penalized

and inhibited. This would allow the government to "produce a result which [it ] co uld not

command directly.' S

peiser v. Randall, 357 U.S. 513, 526, 78 S.Ct. 1332 [1342], 2 L.Ed.2d

1460 [ (1958) ]. Such interference with constitutional rights is impermissible.

408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972).

Co peland maintains that his transfer of Click and Falcon to the jail was not a demot io n

because neither received a decrease in pay; in fact Falcon received a raise. Money alone, however,

does not buy happiness. The P erry Court spoke of "benefits" generally, not just salary. The evidence

adduced at trial strongly supports the proposition that jobs in the jail are not as interesting or

prestigious as jobs in the law enforcement section. E.G. Reyes, the assistant director of security at

the jail, testified that few people transferred voluntarily from law enforcement to detention positions

and that "everybody" views a transfer from detention to law enforcement as a promotion. AndreaSan Miguel, the civil service director, concurred in this assessment. She also testified that she had

received eight appeals from those involuntarily transferred from law enforcement to detention, but

only one appeal from a transfer the other way. Even Sheriff Copeland t est ified as to the general

preference for law enforcement positions, commenting that "[r]ight this minute every one of [the jail

guards] ... would like to be out in a patrol car, or do an investigation, or serving papers."

In short, Click and Falcon's transfers to the jail could be considered demotions, even though

they suffered no reduction in salary. See R eeves v. Claiborne County Bd. of Educ., 828 F.2d 1096,

1100 (5th C ir.1987); W

aters v. Chaffin, 684 F.2d 833, 837 n. 9 (11th Cir.1982) (any discipline

implicates First Amendment, including demotion and transfer); B ennis v. Gable, 823 F.2d 723, 731

(3d Cir.1987) ("the constitutional violation is not in the harshness of the sanction applied, but in the

imposition of any disciplinary action for the exercise of permissible free speech"); see also F yfe v.

Curlee, 902 F.2d 401, 404–05 (5th Cir.) (transfer without loss in pay), cert. denied,

––– U.S.

––––,

111 S.Ct. 346, 112 L.Ed.2d 310 (1990).

Further, there was evidence that Click and Falcon lost seniority rights when they were

transferred to detention positions because, at the time, the jail and the law enforcement sections had

different sen io rit y systems. The jury was entitled to find that this loss affected opportunities for

promotion. In 1980 this circuit recognized that loss of an opportunity for promotion is cognizable

under § 1983. See Bickel v. Burkhart, 632 F.2d 1251, 1255 & n. 6 (5th Cir.1980).

Copeland relies on Delong v. United States, 621 F.2d 618 (4th Cir.1980), for the proposition

that employee discipline is actionable only wh en it amounts to the "substantial equivalent of

dismissal." See i d. at 623; P arrett v. City of Connersville, Ind., 737 F.2d 690, 694 (7th Cir.1984),

cert. dismissed, 469 U.S. 1145, 105 S.Ct. 828, 83 L.Ed.2d 820 (1985). Copeland, however, has not

demonstrated that the Delong standard was ever the law in this circuit. Indeed at least one of our

cases pointed in a contrary direction. In B ickel, we held that an employe e could establish adeprivation by showing that his employer altered an "important condition of employment." 632 F.2d

at 1255 n. 6. Moreover, the Supreme Court explicitly rejected the Fourt h and Seventh Circuits'

standard in 1990 and held that an employer violates the First Amendment even when he bases a

transfer or an opportuni ty for promotion on an employee's political affiliat ion or support. See R utan

v. Republican Party of Ill., 497 U.S. 62, ––––, 110 S.Ct. 2729, 2737, 111 L.Ed.2d 52, 67 (1990).

Although Rutan itself was decided after the pertinent events of this case, it drew directly upon three

cases that predated these events. See P erry, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972);

Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion); B ranti v.

Finkel, 445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (19 80). We therefore reject Copeland's

argument.

The law was established clearly enough in this circuit in 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 liabilit y by demoting and transferring the employee rather than discharging

him. The plaintiffs presented sufficient evidence of a "deprivation" of rights under § 1983 to reach

the jury. It follows that the district court erred to the extent it held otherwise.

B.

We turn next to the question of whether, in January 1988, the law was clearly established that

a sheriff could not retaliate against an employee for the employee's political activity, as distinguished

from the employee's speech or beliefs. More concretely, we must determine whether it was clearly

established that Click and Falcon's conduct—running for office aga inst their employer—was

protected by the First Amendment.

Courts ha ve lo ng recognized the competing concerns inherent in cases involving the First

Amendment rights of public employees. To merit protection, an employee must first demonstrate that

his conduct addresses a matter of "public concern." C onnick v. Myers, 461 U.S. 138, 146, 103 S.Ct.1684, 1689, 75 L.Ed.2d 708 (1983). This determination is a question of law, to be resolved by the

court. I d. at 148 n. 7, 103 S.Ct. at 1690 n. 7. If the conduct does not touch a matter of public

concern, the inquiry is at an end and a court will not scrutinize the reasons motivating the employer's

action. If the employee survives this threshold, however, then the court must strike "a balance

between the interests of the [employee], as a citizen, in commenting upon matters of public concern

[against] the interest of the State, as an employer, in promoting the efficiency of the public services

it performs through its employees." P ickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731,

1734, 20 L.Ed.2d 811 (1968).

Copeland again relies on Matherne to sup port his contention that the law was not clearly

established that the First Amendment protects the political activity of public employees. M atherne,

851 F.2d 752 (5th Cir.1988). M atherne indeed addressed qualified immunit y in th e context of

retaliation against an employee for his political activity. In Matherne a sheriff discharged a deputy

after discovering the deputy campaig ning fo r the sheriff's opponent. The M atherne court relied

heavily on McCormick v. Edw ards, 646 F.2d 173 (5th Cir. Unit A May 1981). In M cCormick, the

court distinguished two Supreme Court cases which had held that nonpolicymaking, nonconfidential

government employees could not be discharged solely because of their political beliefs. See E lrod

v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality opinion); B ranti v. Finkel,

445 U.S. 507, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980). The M cCormick court distinguished the right

to engage in political activity from the right to hold political beliefs and concluded that the former was

outweighed by state interests. M cCormick, 646 F.2d at 175, 179. The Matherne court was bound

by the dichotomy created in McCormick. Matherne, 851 F.2d at 758. Thus there is some merit to

Copeland's reliance on Matherne. Indeed, it might seem that Copeland has a stronger case than his

counterpart i n M

atherne because there, the employee was campaigning for another opponent

,

whereas here, Copeland found his political rivals on his own payroll.

Once again, howev er, Co peland's reliance on M atherne falls short. M

atherne 's qualifiedimmunit

y analysis was limit

ed to the law as of July 1983. M atherne, 851 F.2d at 757. We are

concerned with the law as of January 1988, nearly five years later. Between those dates, this court

decided a case that change s t he analysis. In M cBee v. Jim Hogg County, 730 F.2d 1009 (5th

Cir.1984), the en banc court re-examined First Amendment freedom in the public employment context

in light of the Supreme Court's then-recent decision of Connick. Our court concluded that cases

involving the balance between employees' First Amendment rights and the employer's right to loyal

and efficient service could be placed on a continuum. M cBee, 730 F.2d at 1014. At one end of the

spectrum were Elrod and B ranti, where little weighing was necessary because "no countervailing

considerations" appeared against the employees' right to believe as they chose. At the other end lay

Ferguson v. Thomas, 430 F.2d 852 (5th Cir.1970), and Duke v. North Texas State Univ., 469 F.2d

829 (5th Cir.1972), "where instructors had incited student disturbances that were sufficiently serious

to call in question the ability of the authorities to maintain order on campus." M cBee, 730 F.2d at

1014.

The McBee court found the facts it faced to lie, as in Connick, somewhere mid-spectrum. In

such a situation, it continued, the appropriate test was that of Pickering. Id. at 1015. Thus M cBee

interpreted Pickering and Connick to require a cour t , when evaluating employer actions taken in

alleged retaliation of protected conduct, "to balance the First Amendment values implicated by those

activities against the possible disruptive effect on governmental provision of servi ces within the

specific context of each case." C oughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir.1991) (citing McBee,

730 F.2d at 1016–17).

Matherne itself demonstrates how McBee changed the analysis of First Amendmen t protection

for political activity. In the first part of M atherne, the court concluded that the defendant was entitled

to qualified immunit

y in his individ ual capacity because the law was not clearly established in July

1983 that a sheriff could not reta liat e against a nonpolicymaking employee in response to that

employee's political activity. M at herne, 851 F.2d at 756–59. In the second part of the opinion,however, the court examined whether the sheriff could be held liable in his official capacity, an

examination that was not limit ed to the law as of July 1983. The court affirmed the sheriff's liability

in his official capacity. I d. at 759–61. The crucial difference was the analytical framework

established by McBee. Id. at 759, 760. The law of M cBee was clearly established in January 1988.

We therefore turn to the application of that law to the facts before us.

It is undisputed that Click and Falcon's conduct, running for elected office, addressed matters

of public concern. Thus this case, like M atherne, McBee, and Connick, falls somewhere in the middle

of the McBee spectrum. It follows that Sheriff Copeland was required to engage in

McBee–Pickering–Connick balancing before taking disciplinary act io n against Click and Falcon

because of their political activity.

The McBee–Pickering–Connick "balancing test is not all-or-nothing but rather a sliding scale

under which "public concern' is weighed against disruption: "a stronger showing of disruption may

be necessary if the employee's speech mor e substantially involves matters of public concern.' "

Matherne, 851 F.2d at 761 (quoting Gonzalez v. Benavides, 774 F.2d 1295, 1302 (5th Cir.1985)).

Factors to weigh in the balancing include: (1) whether the employee's actio ns involve "public

concerns"; (2) whether "close working relationships" are essential to fulfilling the employee's public

responsibilities; (3) the time, place, and manner of the employee's activity; (4) whether the activity

can be considered "hostile, abusive, or insubordinate"; and (5) whether the activity "impairs discipline

by superiors or harmony among coworkers." M atherne, 851 F.2d at 760 & nn. 47–48 (citing McBee,

730 F.2d at 1016–17; R ankin v. McPherson, 483 U.S. 378, 388, 107 S.Ct. 2891, 2899, 97 L.Ed.2d

315 (1987)).

On these facts the balancing clearly tips in favor of the pl aintiffs. Copeland did not argue

below nor to us that Click and Falcon's political candidacies had any effect on their performance, on

others' performance, on discipline, or on harmony among coworkers. Copeland has not claimed any4 See Coughlin v. Lee, 946 F.2d 1152, 1157 (5th Cir.1991) (test for causation is distinct from

test for constitutional protection). We address the causation question in Section III below. disruption at all; he maintains that Click and Falcon's candidacies had absolutely nothing to do with

his decision to transfer them to jail duties. Rather, Copeland maintains that he transferred them solely

in response to a personnel s ho rt age at the jail. This assertion, while important for the question of

causation, is fatal to his claim of qualified immunity. 4

It follows that the district court erred in according Sheriff Copeland qualified immunit y and

directing a verdict for him on that basis. We turn next to the question of Copeland's liability in his

official capacity.

III.

The district court directed a verdict for Sheriff Copeland in both his individual and official

capacities. Although we have already concluded that Copeland cannot avert individual liability on

the basis of qualified immunit y, he may still escape liabilit y altogether if the record demonstrates no

causal connection between his transfer of plaint iffs an d t heir candidacy for sheriff. We therefore

address whether the district court erred by directing a verdict on causation.

This court reviews directed verdicts de novo. After reviewing the evidence in the light most

favorable to the non-movant, a directed verdict is appropriate only "[i]f the facts and inferences point

so strongly and overwhelmingly in favor of one party that the Court believes that reasonable [persons]

could not arrive at a contrary verdict." B oeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969)

(en banc).

The appropriate framework for analyzing plaint iffs' claim of retaliatory transfer is that of Mt.

Healthy City School Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977).

Under Mt. Healthy, the employee has the init ial burden of de monstrating (1) that his conduct wasprotected by the First Amendment, and (2) that this conduct was a "subst antial" or "motivating"

factor in the employer's action. If the employee survives this threshold, the burden then shifts to the

employer (3) to show, by a preponderance of the evidence, a legit ima t e reason for which it would

have taken the same action against the employee even in the absence of this protected conduct. The

employee can then refute this assertion by showing that the employer's proffered explanation is merely

pretextual. I

d. at 287, 97 S.Ct. at 576; Coughlin, 946 F.2d at 1157. Our analysis in the previous

section demonstrates that Click and Falcon's conduct was protected by the First Amendment. We

turn, then, to proof of causation.

Wheth er an emplo yee's protected conduct was a substantial or motivating factor in an

employer's decision to take action against the emplo yee is a question of fact, ordinarily rendering

summary disposition inappr opri ate. B rawner v. City of Richardson, Tex., 855 F.2d 187, 193 (5th

Cir.1988) (summary judgment inappropriate because defendant's motive is a material issue of fact).

The evidence the plaint iffs presented to prove that their political candid acies were a substantial

motivating factor in Sheriff Copeland's d ecisio n to transfer them included: (1) that they were

performing their jobs satisfactorily before the transfer; (2) that Copeland transferred them around

the day that Falcon announced his candidacy; (3) that Copeland transferred five jail guards to law

enforcement positions on the same day plaintiffs were transferred from those positions; (4) that in

the first three months of 1988, only three law enforcement of ficers, including plaintiffs, were

transferred to jail duty, while nine off icers were transferred from jail duty to law enforcement

positions; and (5) that Copeland threatened t o discharge Click after the primary. Viewing this

evidence in the light most favorable to plaint iffs, as we must, we cannot say that a reasonable jury

could not infer that plaint iffs' candidacies were a substantial motivating factor in Sheriff Copeland's

decision to transfer them.

As to the third prong of the Mt. Healthy test, Copeland is entitled to show that he would have

tr ansferred Click and Falcon even if they had not engaged in protected activity. Sheriff Copelandtestified that he was unaware that they were candidates for sheriff when he tr ansferred them

.

According to Copeland, he transferred them solely because of a severe personnel shortage at the jail.

Sheriff Copeland's evidence o f his motivation for transferring plaintiffs, along with the plaintiffs'

evidence that supports a contrary inference, is fodder for the jury. If the jury accepts Sheriff

Copeland's explanation that he transferred Cli ck and Falcon because of a legitimate priority of the

office and without regard to their candidacy fo r sheriff, he is entitled to a verdict. But Sheriff

Copeland is subject to liabilit y if he transferred them in retaliation f or exercising their First

Amendment rights. M t. Healthy, 429 U.S. at 283–84, 97 S.Ct. at 574–75; B rantley v. Surles, 718

F.2d 1354, 1358 (5th Cir.1983); F yfe v. Curlee, 902 F.2d 401, 404 (5th Cir.), cert. denied,

––– U.S.

––––, 111 S.Ct. 346, 112 L.Ed.2d 310 (1990).

In short, plaint iffs presented sufficient evi dence of causation to withstand a motion for

directed verdict at the close of their case. We therefore vacate the district court's judgment in favor

of Sheriff Copeland. In view of our decision to vacate and remand the case against Sheriff Copeland,

we also vacate the judgment in favor of B exar County. On remand, the district court is free to

re-evaluate whether the sheriff's liabilit y, if any, can be imputed to the County because of his role as

a County policymaker. See P embaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292, 1298,

89 L.Ed.2d 452 (1986); Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir.1980).

IV.

For the foregoing reasons, we conclude that the district court erred in according defendant

Copeland qualified immunit y in the suit against him in his individual capacity. We also conclude that

Copeland was not entitled to a directed verdict on the question of liabilit y in his official capacity. We

therefore VACATE the judgment entered in favor of all defendants and REMAND for further

proceedings consistent with this opinion.

VACATED and REMANDED.