IN THE UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS 

DALLAS DIVISION 

EDWARD J. DIXON 4 

4 

Plaintiff, 4 

4 

VS. 4 NO. 3-05-CV-1071-BD 

4 

CITY OF CROWLEY, TEXAS, 4 

ET AL. 4 

4 

Defendants. 4 

MEMORANDUM OPINION AND ORDER 

Defendants City of Crowley, Texas, Kirk Nemitz, and Truitt Gilbreath have filed a motion 

for summary judgment in this free speech retaliation case brought under 42 U.S.C. 4 1983. For the 

reasons stated herein, the motion is granted. 

Plaintiff Edward J. Dixon was employed by the City of Crowley as a police officer from 

1993 until March 10,2004. (See Def. MSJ App. at 64, 126, 128-29). At various times during his 

tenure with the police department, plaintiff was either counseled or disciplined for making 

inappropriate remarks about citizens or other officers. On one occasion, plaintiff was demoted from 

the rank of corporal to patrol officer for using profane and derogatory language when talking about 

an officer who was responding to a 91 1 call. (Id. at 035-36, 037-40, 152-54). Another time, 

plaintiff received negative comments in his performance evaluation for demeaning his co-workers. 

(Id. at 03 1-32, 162-64). Plaintiff also regularly criticized his supervisors, including Chief Kirk 

Nemitz. (See id. at 184-99). Sometime after Nemitz became Chief of Police, plaintiff and other 

senior officers circulated a "no confidence" petition in an attempt to have Nemitz dismissed. (Id. 

 

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at 066, 145-46). Plaintiff admits that he was "frustrated" when the City Council refused to take 

action on the petition. (Id. at 146-47). He also acknowledges harboring resentment towards Nemitz 

and the department as a result of his demotion from corporal to patrol officer. (Id. at 048, 185). 

In early 2004, plaintiff applied for promotion to the rank of sergeant. (Id. at 041). As part 

of the process, each applicant was required to take a written test and appear before a board of law 

enforcement professionals from nearby agencies. (Id. at 041, 127-28). On February 27,2004, the 

day of the board interviews, plaintiff offered to give another applicant, Rodney Wallace, a ride back 

to the police station to start his shift. (Id. at 042, 199a-b). In the car, plaintiff questioned Wallace 

about his interview. Wallace expressed reluctance to discuss the matter because plaintiff had not 

yet been interviewed by the board. (Id. at 199b). Plaintiff then asked Wallace which board member 

asked the most questions. Wallace responded that he did not know the panel member's name, but 

the man was seated at the corner of the table and wore a blue windbreaker. (Id. at 042). Plaintiff 

immediately identified the panel member as Greg Arrington, a former City of Crowley police officer 

who had lodged several excessive force complaints against plaintiff when he was with the 

department. (Id. at 133-36). According to Wallace, plaintiff blurted out, "that's a backstabbing 

motherf----- just like Kirk Nemitz, if you ever have to deal with that f----, watch your back." (Id. 

at 043- 199b). Upon learning that plaintiff had been selected for promotion to the rank of sergeant, 

Wallace reported the derogatory remark about Nemitz to his supervisors who, in turn, initiated an 

internal affairs investigation. (Id. at 199b-c). During the course of that investigation, numerous 

police department employees reported that plaintiff routinely made negative comments to his coworkers about ChiefNemitz and other supervisors. (Id. at 045). Plaintiff was eventually terminated 

 

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for insubordination, conduct unbecoming a police officer, and violating departmental policy 

regarding employee speech. (Id. at 048-50).' 

Plaintiff appealed his termination to City Manager Truitt Gilbreath and the Crowley City 

Council. (Id. at 052-53). Both appeals were denied. Plaintiff then demanded that the dispute be 

submitted to final and binding arbitration pursuant to a provision in the City of Crowley Personnel 

Manual. (Id. at 004-008). The City rejected the arbitration demand. On May 24, 2004, plaintiff 

filed this action in federal district court seeking an order compelling arbitration or, alternatively, for 

reinstatement and damages. The gravamen of plaintiffs complaint is that he was fired by the City 

in retaliation for exercising his First Amendment right to freedom of speech. After the court 

determined that plaintiff was not entitled to an order compelling arbitration, see Dixon v. City of 

Crowley, No. 3-05-CV-1071-BD, op. at 3 (N.D. Tex. Dec. 28,2005), defendants filed a motion for 

' The Crowley Police Department General Orders & Procedures governing employee speech provides, in pertinent 

part: 

201.02 POLICY 

A. Law enforcement members are entrusted with special responsibilities. 

They must conduct themselves in a professional manner and are subject 

to discipline for engaging in "conduct unbecoming an officer" or "conduct 

detrimental to the police department." 

201.03 SPEECH UNPROTECTED AS A MATTER OF LAW 

A. Members are subject to disciplinary action for speech constituting treason, 

libel, slander, perjury, incitement to riot, or knowingly make false 

statements regarding police departmental operations or personnel. 

B. Members may not publicly criticize the police departmental operations, 

policies, or personnel by speech, writing, or expression in any other 

manner when such speech is factually inaccurate or is made witha reckless 

disregard for its truth or falsity or there is no legitimate public interest. 

(Def. MSJ App. at 029). 

 

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summary judgment on plaintiffs free speech retaliation claim. The motion has been fully briefed 

by the parties and is ripe for determination. 

11. 

Summary judgment is proper when there is no genuine issue as to any material fact and the 

movant is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 

477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party seeking summary 

judgment bears the initial burden of showing the absence of a genuine issue for trial. See Duffi v. 

Leading Edge Products, Inc., 44 F.3d 308,3 12 (5th Cir. 1995). This may be done by "pointing out 

'the absence of evidence supporting the nonmoving party's case."' Id., quoting Skotak v. Tenneco 

Resins, Inc., 953 F.2d 909,913 (5th Cir.), cert. denied, 113 S.Ct. 98 (1992). Once the movant meets 

this burden, the nonmovant who has the burden of proof at trial must show that summary judgment 

is not proper. See Duckett v. City of Cedar Park, 950 F.2d 272,276 (5th Cir. 1992). The parties 

may satisfy their respective burdens by tendering depositions, affidavits, and other competent 

evidence. See Topalian v. Ehrman, 954 F.2d 1125, 1131 (5th Cir.), cert. denied, 113 S.Ct. 82 

(1992). All evidence must be viewed in the light most favorable to the party opposing the motion. 

See Rosado v. Deters, 5 F.3d 1 19, 122 (5th Cir. 1993). 

A. 

A governmental entity may not retaliate against a public employee for exercising his 

constitutional right to freedom of expression. Rankin v. McPherson, 483 U.S. 378,383, 107 S.Ct. 

2891,2896,97 L.Ed.2d 3 15 (1987); Wallace v. Texas Tech University, 80 F.3d 1042,1050 (5th Cir. 

1996). However, there are limitations on a public employee's right to free speech in the workplace. 

See Blackburn v. City of Marshall, 42 F.3d 925,93 1 (5th Cir. 1995). To prevail on a free speech 

retaliation claim, the plaintiff must establish that: (1) he suffered an adverse employment action; 

 

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(2) the speech at issue involved matters of public concern; (3) the plaintiffs interest in the speech 

outweighed the government's interest in promoting efficiency; and (4) the speech precipitated the 

adverse employment action. See Randolph v. Texas Rehabilitation Comm'n, 214 Fed.Appx. 424, 

426,2007 WL 120271 at "1 (5th Cir. Jan. 18, 2007), citing Alexander v. Eeds, 392 F.3d 138, 142 

(5th Cir. 2004). An adverse finding at any stage of the analysis is conclusive and terminates the 

inquiry. Coughlin v. Lee, 946 F.2d 1 152, 1 156-57 (5th Cir. 1991). 

B. 

There is no question that plaintiff suffered an adverse employment action as a result of his 

speech--he was fired by the City of Crowley after making disparaging remarks about Chief Nemitz. 

Therefore, the court must decide whether plaintiffs speech involved a matter of public concern. 

"Matters of public concern are those which can 'be fairly considered as relating to any matter of 

political, social, or other concern to the community."' Branton v. City ofDallas, 272 F.3d 730,739 

(5thCir. 2001), quoting Connickv. Myers,461 U.S. 138,146,103 S.Ct. 1684,1690,75 L.Ed.2d 708 

(1 983). Speech involves a matter of public concern "when it is made primarily in the speaker's role 

as a citizen rather than as an employee addressing only matters of personal interest." Bitsoffv. City 

ofDallas, No. 3-98-CV-1262-BD, 1999 WL 222452 at *4 (N.D. Tex. Apr. 8, 1999) (Kaplan, J.), 

affd, 199 F.3d 438 (5th Cir. Oct. 19, 1999) (Table), citing Connick, 103 S.Ct. at 1690-91. While 

the existence of an element of personal interest on the part of the employee does not prevent a 

finding that the speech as a whole raises issues of public concern, "an employee cannot transform 

a personal conflict into an issue of public concern simply by arguing that individual concerns might 

have been of interest to the public under different circumstances." Markos v. City ofAtlanta, 364 

F.3d 567,570 (5th Cir. 2004), citing Bradshaw v. Pittsburg Independent School Dist., 207 F.3d 814, 

 

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8 16 (5th Cir. 2000). The primary motivation of the speaker is determined by the "content, form, and 

context of a given statement, as revealed by the whole record." Connick, 103 S.Ct. at 1690. 

It is clear that plaintiffs statement to Rodney Wallace, in which he referred to Greg 

Arrington as a "backstabbing motherf----- just like Kirk Nemitz," did not involve a matter of public 

concern. Plaintiff did not accuse Arrington or IVemitz of corruption, misconduct, malfeasance, or 

any other inappropriate behavior related to their office. Nor is there any evidence to suggest that 

this vulgar remark speaks to the honesty and integrity of Arrington and Nemitz. Rather, the content, 

form, and context ofplaintiff s statement points to the inescapable conclusion that he was motivated 

by personal hostility, not by matters of concern to the community. Arrington had filed two 

excessive force complaints against plaintiff when he was employed by the Crowley Police 

Department. Nemitz had demoted plaintiff for using profane language and the two frequently 

clashed over management issues. On these facts, none of which are controverted by plaintiff, the 

court determines that plaintiffs statement about Arrington and Nemitz was not a matter of public 

concern and, therefore, provides no basis for a free speech retaliation claim under the First 

Amendment. 

CONCLUSION 

Defendants' motion for summary judgment [Doc. #4 11 is granted. The court will dismiss this 

case with prejudice by separate judgment filed today. 

SO ORDERED. 

DATED: July 1 1,2007. 

 

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