IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

KEVIN ELLIS, et al., §

 §

Plaintiffs, §

 § Civil Action No. 3:03-CV-2416-D

VS. §

 §

EDDIE CRAWFORD, et al., §

 §

Defendants. §

MEMORANDUM OPINION

 AND ORDER 

This is a lawsuit by five Dallas Police Department (“DPD”)

officers against five DPD supervisors, including one police union

official, alleging claims under 42 U.S.C. § 1983 for violations of

plaintiffs’ First and Fourteenth Amendment rights and for

conspiracy to violate their civil rights. Defendants move for

summary judgment, principally presenting the question whether

plaintiffs have introduced evidence that would permit a reasonable

jury to find that any of them suffered an adverse employment

action. Concluding that they have not, and that there is no

genuine issue of material fact that otherwise precludes summary

judgment on a claim that has been properly pleaded, the court

grants defendants’ motions and dismisses this case.

I

Because the court has already addressed this lawsuit in an

extensive memorandum opinion and order that sets out the background

facts and procedural history in some detail, see Ellis v. Crawford,

2005 WL 525406, at *1-*3 (N.D. Tex. Mar. 3, 2005) (Fitzwater, J.)

 

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1

Plaintiffs originally sued three other defendants: Terrell

Bolton (“Bolton”), Joe Gunn (“Gunn”), and Rick Andrews (“Andrews”).

In an order issued under Fed. R. Civ. P. 4(m) the same day Ellis I

was decided, the court directed plaintiffs to show cause why their

actions against these defendants should not be dismissed for

failure to effect service. See Ellis I, 2005 WL 525406, at *3 n.4.

Plaintiffs did not meet their burden, and in a Rule 54(b) final

judgment filed April 7, 2005, the court dismissed without prejudice

plaintiffs’ actions against Bolton, Gunn, and Andrews.

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(“Ellis I”), and because the court assumes the parties’ familiarity

with that decision, it will not recount the background facts and

procedural history at length. In sum, plaintiffs Kevin Ellis

(“Ellis”), Lee Bush (“Bush”), Tom Clayton (“Clayton”), Shawn Wash

(“Wash”), and Steve Fuentes (“Fuentes”) sue defendants Eddie

Crawford (“Crawford”), Randy Hampton (“Hampton”), Roseanna Renaud

(“Renaud”), June Kim Edwards (“Edwards”), and Scott Gerdes

(“Gerdes”), alleging that they unlawfully retaliated against Bush

after he obtained a promotion to the rank of Sergeant through the

settlement of a race discrimination lawsuit against the City of

Dallas and individuals within DPD.1

 Plaintiffs aver that

defendants retaliated against Ellis, Clayton, Wash, and Fuentes

because they appeared to support Bush. Bush was assigned to

command the Interactive Community Policing (“ICP”) Unit of DPD’s

Northwest Division. The other four plaintiffs——Ellis, Clayton,

Wash, and Fuentes——were also assigned to the ICP Unit and were

under Bush’s direct supervision. 

In Ellis I the court considered defendants’ motion to dismiss

under Fed. R. Civ. P. 12(b)(6), which presented the questions

 

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2As explained infra at § IV(B), the court did not grant

plaintiffs leave to amend their complaint or to assert new causes

of action in their Rule 7(a) reply.

3In view of the court’s decision granting Crawford’s summary

judgment motion, it need not address his August 22, 2005 Rule 12

motion for judgment on the pleadings. The court denies the motion

without prejudice as moot.

4Due to the unexpected and untimely death of plaintiffs’

counsel, the court stayed consideration of these motions through

September 13, 2006, when they again became ripe for decision.

Plaintiffs’ current counsel is not the attorney who filed the brief

that is the subject of this memorandum opinion.

5Crawford filed on January 19, 2006 objections to, and a

motion to strike, plaintiffs’ summary judgment evidence. Gerdes

filed on January 31, 2006 a motion to strike plaintiffs’ summary

judgment response and evidence. And Edwards filed on January 31,

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whether defendants were entitled to qualified immunity and whether

plaintiffs had adequately stated a conspiracy claim under

§ 1985(2). See Ellis I, 2005 WL 525406, at *1. The court

dismissed plaintiffs’ § 1985(2) conspiracy claim against all

defendants, id. at *28-*29, and it held that plaintiffs’ complaint

and Rule 7(a) reply were insufficient to overcome defendants’

qualified immunity defense, id. at *29. The court allowed

plaintiffs to file an amended Rule 7(a) reply that addressed the

pleading deficiencies. Id.2

After plaintiffs filed their amended Rule 7(a) reply,

Crawford filed a Rule 12 motion for judgment on the pleadings,3

 and

all five defendants filed summary judgment motions.4 Plaintiffs

oppose the summary judgment motions in a consolidated brief and

evidence appendix.5

 

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2006 a motion to strike plaintiffs’ summary judgment response and

evidence. Because in dismissing plaintiffs’ claims the court is

not relying on evidence to which defendants object, the court need

not address the motions to strike, and it denies them without

prejudice as moot.

6

Renaud moves for summary judgment on the ground that

plaintiffs’ claims against her have been discharged in bankruptcy.

Plaintiffs appear to recognize that their actions against Renaud

are barred on this basis. See Ps. Br. 1 n.1 (“Note: Renaud’s

claims have been administratively dismissed so the Plaintiffs are

not clear as to why she has sought a summary judgment.”). In any

event, plaintiffs have not presented any reason to avoid Renaud’s

bankruptcy discharge. The court therefore grants Renaud’s motion

for summary judgment.

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II

Gerdes, Edwards, Hampton, and Crawford each move for summary

judgment on the basis that plaintiffs cannot establish the

essential elements of a prima facie case of First Amendment

retaliation because, inter alia, they cannot demonstrate that they

suffered an adverse employment action.6

A

To establish a First Amendment retaliation claim under § 1983,

plaintiffs must show that they suffered an adverse employment

action as a result of speech involving a matter of public concern;

that their interest in commenting on the matter of public concern

outweighed defendants’ interest in promoting efficiency; and that

the adverse action was motivated by the protected speech. Ellis I,

2005 WL 525406, at *4 (citing Foley v. Univ. of Houston Sys., 355

F.3d 333, 341 (5th Cir. 2003)). In Ellis I the court summarized

the “adverse employment action” element of a retaliation claim:

 

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The Fifth Circuit takes a narrow view of

what constitutes an adverse employment action.

Included in the list of recognized adverse

employment actions are discharges, demotions,

refusals to hire, refusals to promote, and

reprimands. The court has also recognized

that, in some circumstances, transfers can

constitute adverse employment actions. For

the purposes of a § 1983 retaliation claim, an

adverse employment action can include a

transfer, because it may serve as a demotion.

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. The

court has suggested that disciplinary filings

may also qualify under § 1983. The definition

of adverse employment action under § 1983 may

include reprimands and disciplinary filings.

But it has declined to expand the list of

actionable actions, noting that some things

are not actionable even though they have the

effect of chilling the exercise of free speech

. . . . The reason for not expanding the list

of adverse employment actions is to ensure

that § 1983 does not enmesh federal courts in

relatively trivial matters.

Ellis I, 2005 WL 525406, at *5 (citations, brackets, quotation

marks, and some parenthetical case explanations omitted).

Because defendants will not have the burden of proof at trial

on plaintiffs’ First Amendment claims, they can meet their summary

judgment obligation by pointing the court to the absence of

evidence to support them. See Celotex Corp. v. Catrett, 477 U.S.

317, 325 (1986). Once they do so, plaintiffs must go beyond their

pleadings and designate specific facts showing there is a genuine

issue for trial. See id. at 324; Little v. Liquid Air Corp., 37

F.3d 1069, 1075 (5th Cir. 1994) (en banc) (per curiam). An issue

 

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is genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is

mandatory if plaintiffs fail to meet this burden. Little, 37 F.3d

at 1076. The failure of plaintiffs’ proof as to any one essential

element renders all other facts immaterial. Celotex Corp., 477

U.S. at 323.

Defendants have discharged their initial burden of pointing to

the absence of evidence that plaintiffs suffered an adverse

employment action. Defendants have pointed generally to the

absence of evidence of an adverse employment action, and they have

also identified (collectively) more than 20 alleged actions that

they contend cannot qualify as adverse employment actions. 

B

The court first decides whether plaintiffs have adequately

identified the alleged adverse employment actions on which they

rely to establish a prima facie case of First Amendment

retaliation.

Under the rubric “Plaintiffs’ First Amendment Claims,”

plaintiffs appear to rely on three types of adverse employment

actions: they were (1) subjected to disciplinary filings as a

result of factually baseless Internal Affairs Division (“IAD”)

investigations; (2) denied overtime pay; and (3) subjected to

 

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7Plaintiffs also state that their “[Rule 7(a)] Reply describes

several retaliatory actions . . . that are classified as adverse

employment actions that constitute actionable conduct.” Ps. Br.

29. This general assertion, unsupported by any citation to

plaintiffs’ appendix, does not adequately apprise the court of the

grounds for plaintiffs’ claim and will not be considered.

8

Plaintiffs’ first and second Rule 7(a) replies are unsworn

pleadings and are not competent summary judgment evidence. See

Diamond Offshore Co. v. A & B Builders, Inc., 302 F.3d 531, 545

n.13 (5th Cir. 2002) (holding that unsworn pleadings do not

constitute proper summary judgment evidence) (quoting Johnston v.

City of Houston, 14 F.3d 1056, 1060 (5th Cir. 1994)).

9

Plaintiffs have followed a briefing method that this court

has repeatedly criticized, including in a recent decision. See

Wooten v. Federal Express Corp., 2007 WL 63609, at *3-*4 (N.D. Tex.

Jan. 9) (Fitzwater, J.), appeal docketed, No. 07-10555 (5th Cir.

May 18, 2007). In their response brief, plaintiffs present 23

pages of allegations, entitled “Plaintiffs’ Facts,” see Ps. Br. 1-

22, followed by approximately 13 pages of ostensible legal argument

that is largely disconnected from the factual allegations, see id.

at 22-34. Consequently, the court must undertake the burdensome

task of linking plaintiffs’ legal arguments to their factual

assertions and to any supporting evidence. As in Wooten, “[i]n the

present case, the court has had to engage in considerable flipping

back and forth between voluminous pages of . . . disputed facts and

legal arguments to understand why the listed facts are

substantively significant and to determine whether they support a

party’s assertion concerning the summary judgment record.” Id. at

*4. This deficiency is compounded in this case because, as the

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retaliatory transfers. Ps. Br. 27-28.7 Plaintiffs do not cite the

summary judgment record or any other relevant parts of their brief

that cite the evidence. They instead appear to refer for “factual

details” to unsworn allegations contained in ¶ 26 of their first

Rule 7(a) reply, which is an unsworn pleading. See Ps. Br. 28.8

Plaintiffs leave the court to link their alleged adverse employment

actions with their factual assertions and any attendant citations

to evidence contained in their appendix.9 

 

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court will explain throughout this opinion, plaintiffs have also

failed to cite the summary judgment record with the specificity

required under N.D. Tex. Civ. R. 56.5(c).

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This court is not obligated to comb the record in search of

evidence that will permit plaintiffs to survive summary judgment.

Adams v. Travelers Indem. Co. of Conn., 465 F.3d 156, 164 (5th Cir.

2006). “Rule 56 does not impose a duty on the district court to

sift through the record in search of evidence to support a party’s

opposition to summary judgment.” Doddy v. Oxy USA, Inc., 101 F.3d

448, 463 (5th Cir. 1996) (citing Jones v. Sheehan, Young & Culp,

P.C., 82 F.3d 1334, 1338 (5th Cir. 1996)). “Rule 56, therefore,

saddles the non-movant with the duty to ‘designate’ the specific

facts in the record that create genuine issues precluding summary

judgment, and does not impose upon the district court a duty to

survey the entire record in search of evidence to support a

non-movant’s opposition.” Jones, 82 F.3d at 1338. Moreover, under

N.D. Tex. Civ. R. 56.5(c), “[a] party whose . . . response is

accompanied by an appendix must include in its brief citations to

each page of the appendix that supports each assertion that the

party makes concerning the summary judgment evidence.” 

Despite the fact that the court is not obligated to comb the

record for evidence to support plaintiffs’ opposition, it has

attempted to cross-reference the three alleged adverse employment

actions that plaintiffs identify with their factual allegations and

 

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10The court will not, however, search plaintiffs’ statement of

facts or appendix to identify sua sponte other potential adverse

employment actions that may support a prima facie First Amendment

retaliation claim.

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any supporting citations to their appendix.10 On that basis, the

court has identified the foregoing three categories of alleged acts

of retaliation as the predicates on which plaintiffs rely in their

attempt to establish a prima facie case. The court will address

these three categories in deciding whether plaintiffs have

presented evidence that would permit a reasonable jury to find that

they were retaliated against, in violation of their First Amendment

rights.

C

Plaintiffs’ first ground for their First Amendment claim is

that they were subjected to disciplinary filings triggered by

factually baseless IAD investigations. 

In the argument section of their brief, plaintiffs offer few

relevant citations to their appendix or pertinent cross-references

to the facts portion; the court is therefore left to comb through

the record to locate evidence of the disciplinary filings to which

plaintiffs refer. Because the court is not required to do this, it

has restricted its analysis to what is apparent from the limited

review of the record warranted by the specificity of plaintiffs’

briefing. On this basis, the court assumes that plaintiffs are

referring to allegations concerning three IAD investigations: the

 

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11The court assumes that plaintiffs are referring to IAD

investigations initiated against plaintiffs rather than to an IAD

investigation initiated by plaintiffs against Crawford.

12Plaintiffs cite, inter alia, a 131-page segment of their

appendix in support of this allegation. See Ps. Br. 17. This is

improper. See, e.g., Akop v. Goody Goody Liquor, Inc., 2006 WL

119146, at *3 n.4. (N.D. Tex. Jan. 17, 2006) (Fitzwater, J.)

(holding that plaintiffs’ citation to entire 137-page appendix was

inadequate under Rule 56.5(c) because it dramatically increased

burden on court to locate evidence on which summary judgment

nonmovant relied) (citing Hagen v. BeautiControl Cosmetics, Inc.,

1999 WL 451228, at *4 n.2 (N.D. Tex. June 28, 1999) (Fitzwater,

J.)). But because the existence of the MPAC vehicle IAD

investigation appears undisputed, this deficiency is not fatal to

plaintiffs’ opposition to defendants’ motion.

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Mobile Police Action Center (“MPAC”) vehicle investigation, the

Monique Alex (“Alex”) sexual harassment investigation concerning

Bush, and the workplace violence investigation instigated by Renaud

against Ellis, Clayton, Wash, and Fuentes in May 2002.11 See Ps.

Br. 14, 16, and 18.

Plaintiffs allege that Ellis, Fuentes, and Clayton were

required in February 2003 to report to IAD to respond to an

allegedly false claim initiated by Crawford, Renaud, Edwards, and

Gerdes that plaintiffs were improperly using the MPAC vehicle to

aid “in the performance of their after hours job.” Ps. Br. 16.12

They contend there is no evidence that they ever used the vehicle

during their off-duty jobs, and that placement of the vehicle was

clearly justified because the area in question was a high crime

area. Plaintiffs also aver that in fall 2003, Renaud, Gerdes, and

Edwards initiated an IAD investigation against Bush concerning

 

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13Bush avers that he became eligible for promotion to the rank

of Lieutenant after taking a civil service examination, and that he

was “downgraded” because his resume contained a report of the

sexual harassment investigations. Ps. Br. 21. But plaintiffs do

not appear to assert that the fact that Bush was

“downgraded”——assuming arguendo that he was——is itself an adverse

employment action. Moreover, plaintiffs do not point to evidence

that would permit a reasonable jury to find that Bush’s being

“downgraded” as a result of the investigations caused him to be

denied a promotion to Lieutenant.

14As they do elsewhere in their briefing, plaintiffs fail here

to cite specific pages in their appendix, as required by Rule

56.5(c). Instead, they cite all 29 pages of the Bush declaration,

a large part of which does not support their response brief

assertions.

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allegations of sexual harassment or sexual misconduct against Alex,

another police officer. Alex asserted that she was not subjected

to improper conduct, but that the investigation was undertaken for

retaliatory reasons and was “very harmful to Bush.” Ps. Br. 18;

Ps. App. 71. Plaintiffs maintain that Bush was “permanently

stigmatized” for being accused of sexual harassment and misconduct,

even though Alex denied that Bush had engaged in any wrongdoing.

Plaintiffs point to Bush’s declaration, in which he avers that

supervisors and administrators regard all referrals to IAD as an

unfavorable mark against an officer’s record, regardless of the

outcome of the investigation.13 Ps. Br. 19-20 (citing Bush Decl.,

Ps. App. 1-29).14 They also contend that in May 2002, Renaud

instituted an internal investigation against Ellis, Clayton, Wash,

and Fuentes for workplace violence against Renaud. See Ps. Br.

 

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15Plaintiffs fail here as well to cite specific pages in their

appendix, as required by Rule 56.5(c). Instead, they cite 37

appendix pages spanning the declarations of Wash, Fuentes, Ellis,

and Clayton. The majority of the cited text does not even relate

tangentially to the Renaud workplace violence investigation.

Additionally, it is unclear whether the workplace violence

investigation was an IAD investigation or some other “internal

investigation.” The court will nevertheless consider it in

deciding defendants’ summary judgment motions.

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14.15

Plaintiffs have failed to demonstrate that they are entitled

to a trial of this ground of their retaliation claim. Their claim

that they were subjected to disciplinary filings based on factually

baseless IAD investigations is somewhat misleading and, in any

event, is not supported by evidence. Plaintiffs do not identify

any summary judgment evidence that could reasonably be construed as

a disciplinary filing that resulted from the MPAC vehicle

investigation, the Alex sexual harassment IAD investigation, or the

Renaud workplace violence investigation. The disciplinary filings

to which plaintiffs refer appear to be nothing more than the IAD

complaints themselves (i.e., the complaints that initiated the MPAC

vehicle investigation, the sexual harassment investigation, and the

workplace violence investigation), not independent, adverse

consequences of the investigations. See Ps. Br. 17-18 (“IAD took

the fraudulent disciplinary filings from Lt. Gerdes, Chief Edwards

and Hampton.”). Their own pleadings establish that Ellis, Fuentes,

and Clayton were cleared of any wrongdoing and were never

disciplined for their deployment of the MPAC vehicle. And there is

 

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16Even after reviewing the 37 pages of improperly-cited

appendix testimony, the court is unable to locate any evidence of

a disciplinary filing or other adverse employment action that

occurred as a result of the Renaud workplace violence

investigation.

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no indication of a filing stemming from the sexual harassment

investigation against Bush. Furthermore, plaintiffs have neither

pointed to nor adduced any evidence that the internal investigation

for workplace violence that Renaud instituted resulted in any

disciplinary filings or other adverse employment action.16

Moreover, many of the foregoing allegations do not rise to the

level of constitutional injury and thus are insufficient as a

matter of law. As the court noted in Ellis I, “[s]everal acts that

would be unpleasant if suffered by an employee are not adverse

employment actions.” Ellis I, 2005 WL 525406, at *8 (citations

omitted). “An investigation by itself does not constitute an

adverse employment action.” Id. at *15. Plaintiffs have neither

pleaded facts nor adequately pointed the court to evidence that

they actually suffered negative or adverse consequence related to

their employment as a result of the IAD investigations into the

MPAC vehicle incident or the Alex matter, or stemming from the

Renaud workplace violence internal investigation. Although the

court acknowledges that an investigation that actually results, for

example, in denial of a promotion can sometimes constitute an

adverse employment action, see id. at *16 (citing Breaux v. City of

Garland, 205 F.3d 150, 157 (5th Cir. 2000)), plaintiffs do not

 

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point to evidence that would permit a reasonable jury to find that

Bush was denied a promotion as a result of an IAD investigation.

An IAD investigation, without more, does not amount to an adverse

employment action. See id. at *15.

Plaintiffs repeatedly emphasize that they were subjected to

permanent stigmatization as a result of the investigations. E.g.

P. Resp. 19-20, 30. But as the court noted in Ellis I, the Fifth

Circuit has held that “false accusations, criticism, and

investigations are not adverse employment actions,” and “[e]ven the

capacity of an action to stigmatize an employee is inadequate to

make it” an adverse employment action. Ellis I, 2005 WL 525406,

at *8 (citing Breaux, 205 F.3d at 157-58 n.14 (“Stigma by itself,

without an impact on one’s employment, does not constitute adverse

employment action.”)). To qualify as an adverse employment action

that will support a First Amendment retaliation claim, the act

taken must alter an important condition of employment, result in

the denial of an employment benefit, or have a negative consequence

on the plaintiff’s employment. Breaux, 205 F.3d at 159 & n.16

(“Some benefit must be denied or some negative consequence must

impinge on the Plaintiff’s employment before a threat of discharge

is actionable.”); Click v. Copeland, 970 F.2d 106, 110 (5th Cir.

1992) (recognizing that, in Bickel v. Burkhart, 632 F.2d 1251 (5th

Cir. 1980), the Fifth Circuit “held that an employee could

establish a deprivation by showing that his employer altered an

 

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17Elsewhere in plaintiffs’ brief, they reiterate the overtime

allegations, citing generally to the majority of their appendix.

See Ps. Br. 18-19 (citing Ps. App. 1-131).

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important condition of employment.” (internal quotation marks

omitted)).

The court therefore concludes that plaintiffs have failed to

adduce evidence that would permit a reasonable jury to find that

they suffered an adverse employment action by being subjected to

disciplinary filings triggered by IAD and internal investigations

that allegedly were factually baseless.

D

Plaintiffs’ second ground for relief is that they were denied

overtime. They assert that “Ellis and Wash were denied the

opportunity to work overtime by Defendant Renaud,” “Renaud informed

Bush that he was no longer permitted to attend community meetings

that would result in receiving compensatory time or overtime,” and

“other Plaintiffs were similarly advised that they would no longer

be permitted to work overtime or gain compensatory time.” Ps. Br.

13 (citing Ps. App. 90-99, 107-121, and 1-131).17 

According to plaintiffs, defendants’ refusal to permit them to

receive overtime benefits was instituted by Renaud, approved by

Edwards, and maintained by the actions of the other defendants.

Plaintiffs posit that, at the time, every other ICP Unit and ICP

Sergeant in the city was being offered and was receiving overtime

pay or compensatory time, and each plaintiff was denied overtime

 

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pay for each year since 2002. Bush asserts that he worked 2.5

hours of overtime on March 7, 2002, but that Renaud and Edwards

would not approve the payment of benefits to him.

The court concludes that a reasonable jury could not find that

the alleged denial of overtime to plaintiffs is an adverse

employment action. As before, the court holds that plaintiffs

cannot meet their summary judgment burden based on general

citations to large segments, including a 131-page grouping, of

their summary judgment appendix, in violation of Rule 56.5(c).

See, e.g., Akop v. Goody Goody Liquor, Inc., 2006 WL 119146, at *3

n.4 (N.D. Tex. Jan. 17, 2006) (Fitzwater, J.). Plaintiffs have

thus failed adequately to point the court to evidence that supports

their allegations. The court is not obligated to comb the

voluminous cited pages of plaintiffs’ appendix in an attempt to

locate proof that would enable them to defeat summary judgment on

this issue. See, e.g., Adams, 465 F.3d at 164. 

In addition to their failure to cite the summary judgment

evidence adequately, plaintiffs’ action fails for the reasons set

out in Ellis I, 2005 WL 525406, at *7-*9. In Ellis I the court

concluded that 

in some circumstances, denial of the

opportunity to earn overtime can qualify as an

adverse employment action that will support a

First Amendment retaliation claim. As noted

above, discharges, demotions, refusals to

hire, refusals to promote, and reprimands are

recognized adverse employment actions.

Although panels in this circuit often cite

 

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this list when discussing what an adverse

employment action is, the court has not held

this list to be exclusive. Accordingly, the

fact that a denial of overtime does not appear

in this list is not dispositive.

Id. at *8 (citations and quotation marks omitted). The court held

in the context of assessing defendants’ qualified immunity defense

that plaintiffs had failed to allege facts sufficient to enable the

court to determine that the alleged denial of overtime was

“sufficiently serious to constitute a constitutional injury.” Id.

at *9 (citations and quotation marks omitted). The court held that

plaintiffs’ pleadings lacked any facts that showed that an alleged

denial was significant enough that it could be considered analogous

to the actions that the Fifth Circuit recognized as an example of

adverse employment action, as opposed to something more trivial.

Id. Absent such detail, the court was unable in Ellis I to

determine whether plaintiffs had pleaded a First Amendment

violation. Id. 

Plaintiffs have not adduced evidence that would enable a

reasonable jury to find that the alleged denial of overtime

benefits constituted an adverse employment action, because they

have not produced proof that would permit the finding that the loss

of overtime compensation was significant enough to be considered

analogous to the actions that the Fifth Circuit has recognized as

examples of adverse employment actions, as opposed to something

more trivial.

 

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18Plaintiffs also allege that on July 24, 2002, Wash was

transferred from the ICP Unit to the First Watch Patrol, and that

this position was less desirable than the ICP position. The court

rejected these allegations in Ellis I, 2005 WL 525406, at *18, and

the cited evidence (the Wash declaration) on which plaintiffs’ now

rely does not support a different result. Plaintiffs also allege

that Wash was transferred because of retaliation and/or

discrimination, once in October 2001 and again in January 2002.

But even assuming that one or both of these transfers are distinct

from the ones the court addresses in this opinion, they fail for

the same reasons.

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The court therefore holds that plaintiffs cannot base their

First Amendment retaliation claims on the alleged denial of

overtime benefits.

E

Plaintiffs assert as the third ground for their First

Amendment claims that some of them were subjected to retaliatory

transfers. They fail here as before to cite their appendix or to

cross-reference the fact portion of their brief. Based on what is

apparent from a limited review of the record, as opposed to combing

the appendix for evidence, the court assumes that plaintiffs are

referring to the alleged retaliatory transfer of Wash to Love Field

Airport (“Love Field”) on or around October 7, 2001, which

plaintiffs’ specifically allege “constituted a demotion.” See Ps.

Br. 9 (citing Ps. App. 90-99).18 

For reasons set out in Ellis I, the court holds that

plaintiffs have not adduced evidence that would permit a reasonable

 

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19Plaintiffs also allege that Edwards and Gunn transferred Wash

to another unit with less desirable job conditions. Although this

claim appears to be distinct from the Love Field transfer, the

court will not comb the cited 131-page portion of the appendix to

attempt to find evidence to support this claim. See, e.g., Adams,

465 F.3d at 164. The court holds that plaintiffs have failed to

establish that this transfer constitutes an adverse employment

action. 

20Plaintiffs do not appear to plead Wash’s post-transfer shift

change as an adverse employment action. See Ps. Br. 9 (“Wash’s

transfer to Love Field constituted a demotion . . . . “). But to

the extent plaintiffs are relying on the shift change, the court

rejects this contention because a mere change in an employee’s work

hours is alone insufficient to constitute an adverse employment

action. Ellis I, 2005 WL 525406, at *17 (citing Benningfield v.

City of Houston, 157 F.3d 369, 377 (5th Cir. 1998)); see also id.

at *9 (In Benningfield the court rejected an argument that a

transfer to the night shift was an adverse employment action.”).

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jury to find that Wash’s transfer to Love Field,19 or his transfer

back to the ICP Unit and resulting shift change,20 constitutes an

adverse employment action. See Ellis I, 2005 WL 525406, at *17-

*18. 

The court recognizes that a transfer that is equivalent to a

demotion can sometimes amount to an adverse employment action. Id.

Plaintiffs maintain that Wash’s transfer to Love Field was a

demotion because he was placed in a much less desirable job than

the one provided to ICP officers. But they have failed to

introduce evidence that would permit a reasonable jury to find that

Wash’s transfer to Love Field was equivalent to a demotion. The

only proof they cite in support of this contention is Wash’s and

Bush’s declarations. Wash’s declaration provides no support for

the conclusory assertion that the transfer to Love Field was a

 

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21Wash’s transfer to Love Field is principally discussed on one

page and in one paragraph of the ten pages that plaintiffs cite.

See Ps. App. 93. In that paragraph, plaintiffs cite no evidence

that would permit a reasonable jury to find that the transfer to

Love Field was equivalent to a demotion. See id.

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demotion. See Ps. App. 90-99 (containing no evidence from which a

reasonable jury could find that transfer to Love Field constituted

a demotion).21 The Bush declaration contains only the conclusory

assertion that the “transfers were made to much less prestigious

and desirable positions than [the ICP Unit].” Ps. App. 27. This

is insufficient to avoid summary judgment. See, e.g., Galindo v.

Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)

(“[U]nsupported allegations or affidavits setting forth ‘ultimate

or conclusory facts . . .’ are insufficient to either support or

defeat a motion for summary judgment.”)(citations omitted).

Plaintiffs have thus failed to adduce evidence that would permit a

reasonable jury to find that Wash suffered any adverse employment

action as a result of the transfers.

G

The court holds that plaintiffs have failed to present a

genuine issue of material fact concerning whether they were

subjected to at least one adverse employment action. Because they

cannot establish an essential element of a prima facie case for

First Amendment retaliation, they cannot recover on their claims

 

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22Defendants also contend that plaintiffs’ speech did not

involve a matter of public concern; that there is no evidence of

retaliatory motivation; and there is no evidence that others

similarly situated were treated favorably. Considering the basis

for the court’s decision, it need not address these contentions.

For the same reason, the court need not address defendants’ motions

to strike plaintiffs’ evidence. See supra note 5.

23Ellis and Clayton are Caucasian, Wash and Bush are

African-American, and Fuentes is of Hispanic heritage. Ellis I,

2005 WL 525406, at *1.

24To prevail on a § 1983 claim for race discrimination, a

plaintiff must offer either sufficient direct evidence of

discriminatory animus, or circumstantial evidence that gives rise

to a presumption of discrimination. Plaintiffs make the conclusory

contention that they have direct evidence of discrimination.

“‘Direct evidence is evidence that, if believed, proves the fact of

discriminatory animus without inference or presumption.’” West v.

Nabors Drilling USA, Inc., 330 F.3d 379, 384 n.3. (5th Cir. 2003)

(Fitzwater, J.) (age discrimination case) (quoting Sandstad v. CB

Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir. 2002)). The court

need not decide whether plaintiffs’ case turns on direct or

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under the First Amendment.22

III

Plaintiffs also allege claims under § 1983 for race

discrimination, in violation of the Fourteenth Amendment Equal

Protection Clause.23

A

Defendants contend they are entitled to summary judgment

because, inter alia, plaintiffs cannot establish that they suffered

an adverse employment action. As in Ellis I, the court applies

“the same definition of adverse employment action to plaintiffs’

§ 1983 race discrimination and First Amendment retaliation claims.”

Ellis I, 2005 WL 525406, at *28.24

 

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circumstantial evidence because, under either approach, the absence

of evidence of an adverse employment action is dispositive.

25At one point, plaintiffs cite to fewer than all 131 pages.

See Ps. Br. 25 (citing Ps. App. 122-25). 

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B

The court notes at the outset that the part of plaintiffs’

brief that addresses this aspect of defendants’ summary judgment

motion is no better than the part the court has already found

deficient, and for the same reasons. That is, plaintiffs fail in

the argument section to cite their appendix or to refer to the

facts portion of the brief. When plaintiffs do cite their

appendix, the citations are in most instances improperly made to a

131-page segment of the appendix, in violation of Rule 56.5(c).25

See Ps. Br. 26 and 27. As the court has noted, it is not obligated

to comb the record in search of evidence that would support

plaintiffs’ case. See, e.g., Adams, 465 F.3d at 164. Nor is it

required sua sponte to raise substantive legal arguments that would

support plaintiffs’ position. Based on what is apparent from the

review of the record warranted by plaintiffs’ briefing, it appears

that plaintiffs identify five acts as adverse employment actions

for purposes of their § 1983 race-discrimination claims.

Specifically, they posit that Bush and other plaintiffs were

forced to endure transfers to less desirable

positions, [subjected to] unfounded

investigations into non-existent misconduct,

unjustified blackened employment records,

downgraded employment reviews, and denial of

 

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overtime benefits.

Ps. Br. 26. Plaintiffs cite 131 pages of their appendix as

evidentiary support for these five allegations. For reasons

already explained, this is insufficient to discharge their burden

as the summary judgment nonmovants. 

Moreover, even accepting arguendo that these alleged adverse

employment actions are supported by evidence, for the reasons

described here and in Ellis I, a reasonable jury could not find

that they constitute adverse employment actions. The court has

already rejected plaintiffs’ attempt to rely on allegations

concerning their denial of overtime benefits, Wash’s transfers, and

plaintiffs’ alleged subjection to IAD and internal investigations.

This leaves the following for consideration: whether plaintiffs

have introduced evidence that would permit a reasonable jury to

find that any other forced transfer (other than Wash’s) constitutes

an adverse employment action; and whether “unjustified blackened

employment records” or “downgraded employment reviews” constitute

adverse employment actions.

Plaintiffs allege that Gerdes placed false and adverse

comments in Bush’s 2002 annual performance evaluation, and that as

a result of these comments, Bush was “denied an opportunity for

advancement.” Ps. Br. 16 (citing Ps. App. 1-29). The court

rejected similar allegations in Ellis I, 2005 WL 525406, at *11-

*12, holding that plaintiffs had failed to allege that Bush

 

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suffered the alteration of an important condition of employment as

a consequence of the downgrading. Plaintiffs improperly cite the

entire 29 pages of Bush’s declaration, the bulk of which is not

relevant to the court’s resolution of this issue. And even after

reviewing the Bush declaration, the court holds that the cited

evidence is insufficient as a matter of law. Although plaintiffs

may have remedied their pleading deficiency by asserting that Bush

was denied the opportunity for advancement, they have failed to

adduce evidence that would permit a reasonable jury to find that

Bush suffered an adverse employment action. 

Other than Wash’s transfers, which the court has addressed

above, the court has been unable to locate (and plaintiffs have not

identified) any factual allegations or evidence in plaintiffs’

summary judgment response concerning other forced transfers.

Similarly, the court has been unable to find (and plaintiffs have

not pointed to) any factual allegations or evidence supporting

their claim regarding “blackened employment records.” To the

extent plaintiffs are referring to Bush’s downgrading, the court

has already addressed and rejected this claim above. And insofar

as plaintiffs are referring to their being stigmatized as a result

of the IAD or other internal investigations, the court has

addressed and rejected such a claim in this decision and in Ellis

I, 2005 WL 525406, at *15 (holding that investigations that did not

result in any action are not actionable) (citing Pierce v. Tex.

 

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26In Ellis I the court noted that because plaintiffs “do not

include [a hostile work environment claim] in either [their

complaint or Rule 7(a) reply], the court will not address it.”

Ellis I, 2005 WL 525406, at *29 n.31.

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Dep’t of Criminal Justice, Institutional Div., 37 F.3d 1146, 1150

(5th Cir. 1994)).

The court will not comb the record or attempt to draw

inferences from the factual allegations in plaintiffs’ response

briefing in search of other acts of discrimination that might rise

to the level of constitutional injury. Accordingly, the court

holds that plaintiffs have failed to raise a genuine issue of

material fact as to whether they suffered an adverse employment

action that can serve as the basis for a claim of race

discrimination, in violation of the Fourteenth Amendment.

C

Plaintiffs also contend that the evidence demonstrates that

they were subjected to a racially hostile work environment. They

have not pleaded such a claim,26 however, and they cannot raise it

for the first time in their summary judgment response. See, e.g.,

Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113

(5th Cir. 2005) (“A claim which is not raised in the complaint but,

rather, is raised only in response to a motion for summary judgment

is not properly before the court.”) (citing Fisher v. Metro. Life

Ins. Co., 895 F.2d 1073, 1078 (5th Cir. 1990)). 

But assuming arguendo that plaintiffs have preserved a hostile

 

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27Where the plaintiffs do cite specific pages of the appendix,

the purpose for which the evidence is being offered is unclear. In

other words, plaintiffs’ briefing renders it nearly impossible to

tell whether the evidence cited is being offered to support their

putative hostile work environment claim or some other, unspecified

race-based discrimination claim. Plaintiffs’ brief asserts that

their pleadings “allege criteria establishing a race claim or a

hostile work environment.” Ps. Br. 24 (emphasis added).

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work environment claim, they have failed adequately to cite any

summary judgment evidence that would permit a reasonable jury to

find in their favor. Plaintiffs allege, inter alia, in conclusory

fashion that “the evidence describes the hostile racial environment

created by Crawford” and the other defendants, but they do not cite

specific pages of their appendix in support of these allegations.

Rather, at the conclusion of a paragraph containing these general

allegations, they again cite a 131-page segment of their appendix,

in violation of Rule 56.5(c).27

In their only allegation supported by properly cited evidence,

plaintiffs maintain that the evidence shows that Crawford made it

clear that he “objected” to Bush and promised to use his influence

over the other defendants to “take actions against Bush.” Ps. Br.

25. They cite Clayton’s declaration, which largely contains

conclusory allegations that Crawford “is a racist,” and “has a

problem with minorities.” Id. Clayton also alleges, inter alia,

that Crawford told him he did not like Bush because he is AfricanAmerican and that Crawford made derogatory statements to Clayton

about minorities. Id. (citing Ps. App. 123). In sum, Clayton’s

 

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28Moreover, the court will not comb the Clayton declaration in

an attempt to discern some other theory of race discrimination that

plaintiffs do not specifically identify. 

29Plaintiffs appear to include in their summary judgment

response allegations relating to conspiracy, but they rely solely

on § 1985(3)——a claim that, by their own admission, plaintiffs did

not intend to plead and that the court addresses and rejects infra

at § IV(B).

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cited assertions are too generalized and conclusory to permit a

reasonable jury to find that they amount to the kind of “severe and

pervasive” race-based harassment that would be sufficient to

support a hostile work environment claim. See, e.g., Wooten v.

Federal Express Corp., 2007 WL 63609, at *19-*20 (N.D. Tex. Jan. 9)

(Fitzwater, J.) (summarizing elements of prima facie case of

hostile work environment), appeal docketed, No. 07-10555 (5th Cir.

May 18, 2007).28

The court therefore grants summary judgment dismissing

plaintiffs’ Fourteenth Amendment-based race discrimination claims.

IV

A

Defendants move for summary judgment on plaintiffs’ conspiracy

claim brought under § 1983. Plaintiffs have not addressed or

otherwise specifically responded to defendants’ summary judgment

motion related to their § 1983 conspiracy claim.29 Although

plaintiffs’ failure to respond does not permit the court to enter

a “default” summary judgment in favor of defendants, see, e.g.,

Tutton v. Garland Independent School District, 733 F. Supp. 1113,

 

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- 28 -

1117 (N.D. Tex. 1990) (Fitzwater, J.), plaintiffs have failed to

adduce evidence that would permit a reasonable jury to find in

their favor. Because defendants have pointed to the absence of

evidence to support plaintiffs’ claim, plaintiffs are obligated to

produce evidence that creates a genuine issue of material fact. “A

summary judgment nonmovant who does not respond to the motion is

relegated to her unsworn pleadings, which do not constitute summary

judgment evidence.” Bookman v. Shubzda, 945 F. Supp. 999, 1002

(N.D. Tex. 1996) (Fitzwater, J.) (citing Solo Serve Corp. v.

Westowne Assocs., 929 F.2d 160, 165 (5th Cir. 1991)). Because

plaintiffs are relegated to their unsworn pleadings, which are not

summary judgment evidence, they have failed to adduce proof that is

sufficient to create a genuine issue of material fact in support of

their § 1983-based conspiracy claim. 

B

In opposition to defendants’ motion, plaintiffs attempt to

rely on a § 1985(3)-based conspiracy claim. They cannot defeat

summary judgment on this basis, however, because, by their own

admission, they did not intend at an earlier point in this case to

plead a § 1985(3) claim, and the court never granted them leave to

amend for the purpose of alleging such a claim. 

Plaintiffs acknowledged in response to defendants’ motions to

dismiss that they did not intend to assert a claim under § 1985(3).

See Ps. Aug. 18, 2004 Resp. to Ds. Mot. Dismiss 6 (“Note the

 

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30Similarly, Crawford did not move for judgment on the

pleadings with respect to a § 1985(3)-based conspiracy claim.

- 29 -

plaintiffs’ complaint and Rule 7a Reply incorrectly reference

§ 1985(3), it should be § 1985(2).” (emphasis added)). And the

fact that plaintiffs were not alleging such a claim at the time

defendants moved for summary judgment is corroborated by the fact

that defendants did not attempt to address the claim in their

motion.30 Plaintiffs cannot rely on a claim that is only raised in

response to defendants’ motion for summary judgment, has not

pleaded in the complaint, and, as explained below, is not properly

asserted in plaintiffs’ Rule 7a reply. See Cutrera, 429 F.3d at

113. 

The court has not granted plaintiffs leave to amend to assert

a § 1985(3)-based conspiracy claim. In Ellis I the court

recognized that “[a]lthough plaintiffs’ pleadings appear to invoke

language from § 1985(2) and (3), in their response to defendants’

motion to dismiss, they state that their pleadings incorrectly

refer to § 1985(3) and should cite § 1985(2).” Ellis I, 2005 WL

525406, at *28 n.29 (emphasis added). The court afforded

plaintiffs an opportunity to amend their Rule 7(a) reply for the

purpose of addressing certain deficiencies identified in the

court’s opinion. It did not do so to enable plaintiffs to amend

their complaint to state a § 1985(3) claim that they explicitly

told the court they did not intend to plead. To the extent

 

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plaintiffs now attempt to allege a § 1985(3)-based conspiracy claim

in their amended Rule 7(a) reply, see Ps. Apr. 2005 Rule 7(a) Reply

33-34, and to rely on this claim to defeat summary judgment, this

is improper. 

“[I]n this circuit, a district court may require a plaintiff

to respond to a public official’s assertion of a qualified immunity

defense by way of a Rule 7(a) reply.” Ellis I, 2005 WL 525406, at

*4 n.6 (citing Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir.

1995)). “The Schultea rule governing the Rule 7(a) reply is an

instantiation of the more general principle that ‘heightened

pleading’ is needed in qualified immunity cases.” Reyes v. Sazan,

168 F.3d 158, 161 (5th Cir. 1999) (citing Schultea, 47 F.3d at

1430). “[T]he [Rule 7(a)] reply must be tailored to the assertion

of qualified immunity and fairly engage its allegations.”

Schultea, 47 F.3d at 1433. It is a means for plaintiffs to

“‘support[ ] [their] claim[s] with sufficient precision and factual

specificity to raise a genuine issue as to the illegality of

defendant[s’] conduct at the time of the alleged acts.’” Reyes,

168 F.3d at 161 (quoting Schultea, 47 F.3d at 1434). The Rule 7(a)

reply is not a proper vehicle for plaintiffs to raise a new cause

of action that they have not been granted leave to add through an

amended complaint.

The court therefore holds that plaintiffs have not properly

preserved a § 1985(3)-based conspiracy claim and cannot now rely on

 

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31These defendants focused their summary judgment motions on

the merits of plaintiffs’ claims rather than on qualified immunity

as a threshold basis for relief. The court has thus reached

qualified immunity at this stage of its decision rather than at an

earlier, preliminary point.

- 31 -

it to defeat summary judgment.

V

Gerdes and Hampton also include in their summary judgment

motions subsidiary arguments seeking dismissal on the basis of

their defense of qualified immunity.31

“[G]overnment officials performing discretionary functions

generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified

immunity likewise applies to state officials sued for

constitutional violations under § 1983. See id. at n. 30 (citing

Butz v. Economou, 438 U.S. 478, 504 (1978); Palmer v. Johnson, 193

F.3d 346, 351 (5th Cir. 1999). “The Supreme Court has

characterized the doctrine as protecting ‘all but the plainly

incompetent or those who knowingly violate the law.’” Cozzo v.

Tangipahoa Parish Council-President Gov’t, 279 F.3d 273, 284 (5th

Cir. 2002) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Plaintiffs have not met their burden of overcoming defendants’

qualified immunity defense. Because the court has granted summary

judgment dismissing plaintiffs’ First Amendment retaliation and

 

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Fourteenth Amendment race-based discrimination claims, defendants

are entitled to qualified immunity as well. In the absence of

evidence that would permit a reasonable jury to find that

defendants committed a constitutional violation, defendants are

entitled a fortiori to qualified immunity.

* * *

Accordingly, for the reasons set out, the court grants

Crawford’s November 15, 2005 motion for summary judgment, Hampton’s

November 15, 2005 motion for summary judgment, Renaud’s November

15, 2005 motion for summary judgment, Gerdes’s November 15, 2005

motion for summary judgment, and Edwards’s November 16, 2005 motion

for summary judgment, and it dismisses this action with prejudice

by judgment filed today.

SO ORDERED.

June 6, 2007.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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