1

United States Court of Appeals

Fifth Circuit

FILED

November 23, 2004

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-51369

 

ALAN W. ALEXANDER; BILLY DAVIS; JOSEPH RANDY DILLARD; RUBEN

DURAN; KENNY FOSTER; MARIA G. GARZA; GREGORY HAIRE; BOBBY HARPER;

EDUARDO JIMENEZ; DENNIS D. LAND; DANNY LEWIS; WILLIAM D. LORD;

JAMES S. LUCAS; GARY P. MCCULLY; ROBERT E. RALLS; JERRY SCHWAB, 

Plaintiffs - Appellees-Cross-Appellants,

versus

WALTER “CHAPS” EEDS, III, Individually; GRADY MICHAEL DUNN,

Individually; MICHAEL DOUGLAS SCOTT, Individually; KENT WEIR

MAWYER, Individually; DAVID MAURY GRIFFITH, Individually; EARL

WELDON MCNEIL, JR., Individually,

Defendants - Appellants-Cross-Appellees.

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Appeals from the United States District Court

for the Western District of Texas

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Before REAVLEY, WIENER, and BENAVIDES, Circuit Judges.

FORTUNATO BENAVIDES, Circuit Judge:

In this direct civil appeal, Alan W. Alexander and other

Texas Department of Public Safety (“DPS”) Officers, Plaintiffs -

Appellees-Cross-Appellants, challenge the district court’s

rulings granting summary judgment and judgment on the pleadings

in favor of Walter “Chaps” Eeds, III, and other senior DPS

officials, Defendants - Appellants-Cross-Appellees. Defendants

challenge the district court’s denial of summary judgment on two
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Plaintiffs’ claims. For the reasons that follow, we affirm, in

part, and reverse, in part.

I. Background

Alan W. Alexander, Billy Davis, Joseph Randy Dillard, Ruben

Duran, Kenny Foster, Maria G. Garza, Gregory Haire, Bobby Harper,

Eduardo Jimenez, Dennis D. Land, Danny Lewis, William D. Lord,

James S. Lucas, Gary P. McCully, Robert E. Ralls, and Jerry

Schwab, Plaintiffs in this case, are all DPS lieutenants. 

Defendants, Walter “Chaps” Eeds, III, Grady M. Dunn, Michael D.

Scott, Kent W. Mawyer, David M. Griffith, and Earl W. McNeil,

Jr., are all DPS supervisors. Plaintiffs participated in a

competitive examination process to advance from the rank of

“lieutenant” to that of “narcotics service captain.”

A six-member panel administered part of the examination. 

Five of its members are Defendants in this case: Eeds, Dunn,

McNeil, Mawyer, and Griffith. The sixth board member was

Assistant Commander Wilber Eugene Hawkins. The eleven candidates

with the highest scores were sent to Defendant Chief Scott. 

After reviewing the list of eleven, Scott sent it to Thomas A.

Davis, Director of DPS, who was empowered to make alternative

promotions for just cause. Following Davis’s ratification, the

lieutenants with the eleven highest scores received promotions.

Plaintiffs allege that senior officers, including Defendants

Scott, Eeds, and Dunn, unfairly preselected eleven candidates for
1McCully is not addressed in the district court’s order, but

his First Amendment retaliation claim was dismissed. Plaintiffs

assume the grounds for the dismissal of McCully’s claim were the

same as for the others because of the similar set of facts at

issue, and thus we treat them as such.

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promotion. They claim that Defendants belonged to an informal

social organization called the “Houston Bar-B-Que Club,” which

influences DPS promotions and policy. The senior officers in the

Club groom their favorites for leadership positions in DPS. 

Scott, Eeds, Dunn, and Deputy Commander Bobby Duvall devised a

strategy for rigging the examination results and shared this with

the other members of the examination panel.

Seven Plaintiffs claim that they were blackballed because of

constitutionally-protected statements they made. These seven are

Foster, Harper, Alexander, Lucas, Schwab, Ralls, and McCully.1

Plaintiffs filed suit in the Austin Division of the U.S.

District Court for the Western District of Texas on August 20,

2002. The suit alleged, inter alia, violations of the U.S.

Constitution’s Equal Protection Clause. After Defendants filed a

motion to dismiss, Plaintiffs amended their complaint to include

a new 42 U.S.C. § 1983 claim alleging retaliation for protected

speech. On November 27, 2002, the district court dismissed all

claims except for the § 1983 retaliation claim.

Following discovery, Defendants moved for summary judgment

on all claims. On November 7, 2003, the district court granted

summary judgment, inter alia, on the protected speech retaliation
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claims of Alexander, Lucas, Ralls, and Schwab, and denied summary

judgment on the claims of Foster and Harper. Following this

judgment, both sides filed appeals. Through agreement and court

order all other claims have been removed to state court or

dismissed.

II. Discussion

We review grants of summary judgment under Federal Rule of

Civil Procedure 56 de novo, applying the same standards the

district court used. Am. Home Assurance Co. v. United Space

Alliance, LLC, 378 F.3d 482, 486 (5th Cir. 2004). “A summary

judgment motion is properly granted only when, viewing the

evidence in the light most favorable to the nonmoving party, the

record indicates that there is no genuine issue as to any

material fact, and that the moving party is entitled to judgment

as a matter of law.” Id. Facts are material only if they could

affect the lawsuit’s outcome. Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 248 (1986). Any factual controversy will be

resolved in the nonmovant’s favor, but only “when both parties

have submitted evidence of contradictory facts.” Olabisiomotosho

v. City of Houston, 185 F.3d 521, 525 (5th Cir. 1999). 

A. Protected speech retaliation claims of Lucas,

Alexander, Ralls, Schwab and McCully

Plaintiffs argue that the district court erred in granting

the motion for summary judgment with regard to the retaliation
2As noted supra, the district court’s ruling did not address

McCully.

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claims of Lucas, Alexander, Ralls, Schwab and McCully.2

To establish a § 1983 claim for retaliation, Plaintiffs must

show: (1) they suffered an adverse employment action; (2) the

speech at issue involved matters of public concern; (3)

Plaintiffs’ interest in the speech outweighs the government’s

interest in efficiency; and (4) the speech precipitated the

adverse employment action. Kinney v. Weaver, 367 F.3d 337, 356

(5th Cir. 2004). If this test is passed, the burden shifts to

Defendants to show that “they would have come to the same

conclusion in the absence of the protected conduct.” Beattie v.

Madison County Sch. Dist., 254 F.3d 595, 601 (5th Cir. 2001).

The district court found that Lucas, Alexander, Ralls,

Schwab, and McCully failed to establish a § 1983 claim because

they did not proffer evidence showing speech on matters of public

concern, the second requirement. We agree with this conclusion.

“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 of Dallas, 272

F.3d 730, 739 (5th Cir. 2001) (quoting Connick v. Meyers, 461

U.S. 138, 146 (1983)). “While speech pertaining to internal

personnel disputes and working conditions ordinarily will not

involve public concern, speech ‘complaining of misconduct within
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the police department . . . [is] speech addressing a matter of

public concern.’” Id. (citations omitted).

In Connick, the Supreme Court taught that “when a public

employee speaks . . . as an employee upon matters only of

personal interest, absent the most unusual circumstances, a

federal court is not the appropriate forum in which to review the

wisdom of a personnel decision taken by a public agency allegedly

in reaction to the employee’s behavior.” 461 U.S. at 147. 

“Whether an employee’s speech addresses a matter of public

concern must be determined by the content, form, and context of a

given statement.” Id. at 147-48. This Court followed that

dictate in Branton when it ruled that disclosure of a police

officer’s malfeasance constitutes a public concern. See 272 F.3d

at 739-40.

Each Plaintiff attempts to identify incidents of protected

speech. Alexander objected to a policy imposed by DPS management

that prohibited narcotics officers from wearing identityconcealing masks, or balaclavas, when conducting raids. This

policy was generated in response to a DPS Commissioner’s concern

that wearing such masks would give DPS a bad image. Alexander

and others expressed fear about potential drug dealer retaliation

against officers identified in the raids. Lucas posed questions

to higher-ups concerning the fairness of the promotion process. 

Ralls questioned the promotion process’ fairness and the
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balaclavas policy, and complained over a period of time about

what he perceived as numerous policy and law violations in the

department. Schwab voiced concern about the promotion test’s

fairness. Finally, McCully objected to the balaclavas policy and

helped an officer receive public commendation against the wishes

of a DPS supervisor.

Plaintiffs’ complaints about the promotion process were

essentially private, not public in nature. These concerns were

voiced only in the form of questions regarding each officer’s

attempt to attain promotion, not about general promotion policy. 

The form of these questions was clearly private, as they were not

leaked to a reporter or sent to an elected state official. Cf.

Markos v. City of Atlanta, 364 F.3d 567, 571 (5th Cir. 2004)

(finding plaintiff’s speech “quintessentially public as his

comments appeared in the form of an article in the local

newspaper”). The context of these comments was also completely

private. No one could reasonably argue that these complaints

“‘were made against a backdrop of widespread debate in the

community’” or could “make valuable contributions to public

debate.” See id. at 572 (citations omitted). They were merely

private concerns reflecting personal interest.

Likewise, conversation about the balaclavas policy is most

properly understood in this situation as private. No ongoing

public debate raged on this issue, and no one outside DPS was
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contacted regarding this matter. Cf. Tompkins v. Vickers, 26

F.3d 603, 607 (5th Cir. 1994) (finding speech to be public when

art teacher’s complaints in a “letter to the editor of the local

newspaper” about elimination of art program “were made against a

backdrop of widespread debate in the . . . community regarding

the art program”).

McCully’s efforts to see that a junior officer be commended

for an act of heroism is not an issue of public policy. There

was no policy being debated or malfeasance disclosed.

Finally, we cannot conclude that any of Ralls’s additional

speech addressed a public concern. There is not enough context

given in the briefs or in the record to make such a finding.

While the facts of this case give us great pause in as much

as they reflect a very troubling promotion process, reeking of

cronyism, within DPS, because the § 1983 actions are brought to

us in the context of alleged First Amendment violations, the

inquiry necessary leads us to conclude that Plaintiffs’ claims

are unsupported. Because the speech of Lucas, Alexander, Schwab,

Ralls, and McCully was not protected by the First Amendment, the

district court correctly granted summary judgment on these § 1983

claims. We affirm the district court’s ruling.

B. Qualified immunity

The district court also granted summary judgment for

Defendants as to the § 1983 claims of Lucas, Ralls, Alexander,
3Again, for our purposes, it is assumed that this ruling

applied to McCully as well.

4This denial is properly appealable to this Court. See

Behrens v. Pelletier, 516 U.S. 299, 307 (1996).

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and Schwab, on the alternative ground of qualified immunity.3 It

denied summary judgment on the basis of qualified immunity with

regards to the § 1983 claims of Foster and Harper.4

To determine whether government officials are entitled to

qualified immunity, we apply a two-step test. “First, a court

must decide whether a plaintiff’s allegation, if true,

establishes a violation of a clearly established right.” 

Hernandez v. Tex. Dept. of Protective & Regulatory Servs., 380

F.3d 872, 879 (5th Cir. 2004). Without an established right,

qualified immunity is granted. Id. “Second, if the plaintiff

has alleged a violation, the court must decide whether the

conduct was objectively reasonable in light of clearly

established law at the time of the incident.” Id.

We dispense with any further analysis concerning Lucas,

Ralls, Alexander, Schwab, and McCully. As concluded supra, their

speech was not constitutionally protected. Therefore, they have

not successfully alleged a violation of an established right and

qualified immunity was properly granted.

Determining whether Foster and Harper have alleged a

violation of a clearly established right involves an application

of constitutional standards as they existed at the time of the
5Defendants contend that we must consider each Defendant

separately during the qualified immunity analysis. Because of

evidence that would allow a finder of fact to determine all

Defendants acted in concert in rigging the promotion process, we

treat all Defendants similarly for present purposes.

6“Where factual disputes exist in an interlocutory appeal

asserting qualified immunity, we accept the plaintiffs’ version

of the facts as true.” Kinney, 367 F.3d at 348.

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alleged violation.5 See Hare v. City of Corinth, 135 F.3d 320,

326 (5th Cir. 1998). In this case, the standard is that of

retaliation for speech protected by the First Amendment under §

1983. See Lukan v. North Forest Indep. Sch. Dist., 183 F.3d 342,

345-46 (5th Cir. 1999). Thus, to decide whether Harper and

Foster have alleged facts that could show a violation of a

clearly established right, we use the same four-part test applied

supra: (1) Did Harper and Foster suffer adverse employment

actions?; (2) Did the speech at issue involve matters of public

concern?; (3) Do Harper’s and Foster’s interests in their speech

outweigh the government’s interest in efficiency?; and (4) Did

the speech precipitate the adverse employment action? See

Kinney, 367 F.3d at 356.

If this test is passed, the burden shifts to Defendants to

show that “they would have come to the same conclusion in the

absence of the protected conduct.” Beattie, 254 F.3d at 601. To

begin, we must determine whether Harper and Foster allege facts

showing violations of a constitutional right.6 It is clear that

Plaintiffs have suffered an adverse employment action in that
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they were not promoted, so no analysis is needed on that first

part of the test.

In 2001, Foster, who performed internal affairs

investigations for DPS, discovered that DPS Lieutenant Dan Walker

was unable to account for twenty-eight firearms under his care. 

Foster subsequently learned that Walker’s alleged carelessness

violated state code and departmental policy. Walker resigned his

position to avoid punishment. Shortly before resigning, the

heretofore friendly Walker completely avoided Foster, indicating

he knew Foster reported the negligence. Walker’s brother, also a

DPS employee, was friends with Eeds and Dunn.

Harper’s case involves a state law passed in 2000 requiring

a certain number of “non-mission critical personnel” to turn

their police vehicles in to the department so transportation

would be available at a central location. DPS Director Davis

decided that this new rule would not apply to upper-level

management since personal use of police vehicles was

traditionally a perk for those who received promotions. Instead,

lower-level officers, some of whom actually needed to have

constant access to their vehicles, were directed to park them at

headquarters. Davis then informed the legislature that DPS

complied with the new law. Some of the vehicles now mandatorily

parked at headquarters were SWAT vehicles. Concerned about the

situation, Harper, a SWAT team member, complained to his

superiors and other state officials. An aide to Representative
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Pete Gallego advised Harper that the law was not meant to apply

to SWAT vehicles and Harper relayed this to one of his superiors. 

He warned Harper to cease his efforts or risk losing his job.

In May 2000, Davis was questioned by the Chairman of the

Criminal Justice House Committee about this situation. The

Representative had received a letter of complaint from Harper. 

Davis informed him that the problem had been corrected and Harper

had resigned. Harper believed that both of these statements

constituted perjury and he reported this to his supervisor.

1. Did Harper’s and Foster’s speech involve a public concern?

As discussed in greater detail supra, “[w]hether an

employee’s speech addresses a matter of public concern must be

determined by the content, form, and context of a given

statement.” Connick, 461 U.S. at 147-48. We apply this same

test to the speech of Harper and Foster.

Foster’s speech did not deal with a matter of public

concern. We have stated: “‘The disclosure of misbehavior by

public officials is a matter of public interest and therefore

deserves constitutional protection, especially when it concerns

the operation of a police department.’” Branton, 272 F.3d at 745

(citation omitted). And, in Branton, we found that an internal

affairs officer’s complaint did constitute a public concern. See

id. at 740-41. Specifically, Branton complained to the Assistant

City Manager of dishonest testimony given by an officer at a
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disciplinary hearing. See id. at 736-37. 

The facts of Branton are distinguishable, though. First, as

to content, Branton’s speech concerned lying to a public official

– clear “malfeasance.” As we have noted, “speech reporting

official misconduct, wrongdoing, or malfeasance on the part of

public officials involves matters of public concern.” Denton v.

Morgan, 136 F.3d 1038, 1043 (5th Cir. 1998). Foster’s speech

disclosed incompetence, not wrong-doing or corruption. The form

of Branton’s speech, a complaint to a city official, went outside

of the police department, whereas Foster’s filing of a report

concerning missing weapons was an internal DPS matter. Finally,

the context of Foster’s speech was private, in that it had

nothing to do with a public debate or existing public issue. See

Markos, 364 F.3d at 572. Foster was not a whistleblower, but an

internal investigator compiling reports on police error as part

of his job. See Foley v. Univ. of Houston Sys., 355 F.3d 333,

341-42 (5th Cir. 2003) (“[I]f the individual spoke primarily as

an employee rather than as a citizen, [his speech] is not

regarded as addressing a matter of public concern.”).

Because we have not found speech on a public concern, we

find no established right was violated. We, therefore, reverse

the district court’s ruling and grant qualified immunity to

Defendants on Foster’s § 1983 claim.

Harper’s speech, on the other hand, concerns a public issue. 
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He alleged misapplication of state law and perjury before the

Texas legislature. His method, contacting elected state

officials, is clearly public, as is the context in that it

concerned a state law and public testimony before an elected

body.

Thus, to determine if Plaintiffs are entitled to qualified

immunity as to Harper’s speech we must consider the rest of the

four-part test.

2. Does Harper’s interest in his protected speech

outweigh DPS’ interest in efficiency?

Harper’s speech also passes this prong of the analysis. We

apply the “Pickering balancing test,” which balances a

plaintiff’s First Amendment rights, on one hand, and “‘the

interest of the State, as an employer, in promoting the

efficiency of the public services it performs through its

employees,’” on the other. Rankin v. McPherson, 483 U.S. 378,

388 (1987) (quoting Pickering v. Bd. of Educ., 391 U.S. 563, 568

(1968)). It “recognize[s] as pertinent considerations whether

the statement impairs discipline by superiors or harmony among

co-workers, has a detrimental impact on close working

relationships . . . , or impedes the performance of the speaker’s

duties or interferes with the regular operation of the

enterprise.” Id. There is no evidence that Harper’s speech

damaged DPS morale or efficiency. He was not disobedient; rather

he wanted to ensure the law was followed.
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3. Did the speech precipitate the adverse employment action?

Harper presents evidence that could allow a fact finder to

infer a causal connection between his protected speech and the

denial of a promotion. For instance, he received a warning that

he could be fired because of his speech.

4. Would Defendants have come to the same conclusion

absent the protected speech?

The evidence proffered by Plaintiffs in this case could

allow a reasonable finder of fact to conclude that the promotion

process was rigged against Plaintiffs. And, since Harper’s

speech clearly threatened senior DPS officials, one could

reasonably deduce that Defendants would not have reached the same

conclusion absent the protected conduct.

5. Was Defendants’ alleged behavior objectively reasonable?

Since Harper has successfully alleged a violation of a

clearly established right, the final question is whether this

right existed at the time of the violation so that Defendants’

alleged behavior may be deemed objectively unreasonable. Harper

“must show that ‘the contours of the right [were] sufficiently

clear that a reasonable official would understand that what he is

doing violates that right.’ . . . Qualified immunity should not

be denied unless the law is such that reasonable officials should

be ‘on notice [that] their conduct is unlawful.’” Kinney, 367

F.3d at 367 (citations omitted).

Reporting serious police misconduct or corruption is an
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activity with well-established protections. See Branton, 272

F.3d at 744 (“For at least thirty-four years, it has been settled

that a state cannot condition public employment on a basis that

infringes the employee’s constitutionally protected interest in

freedom of expression.”); Brawner v. City of Richardson, 855 F.2d

187, 191-92 (5th Cir. 1988) (“The disclosure of misbehavior by

public officials is a matter of public interest and therefore

deserves constitutional protection, especially when it concerns

the operation of a police department.”). Thus, Defendants are

not entitled to qualified immunity for the alleged § 1983

violation concerning Harper. We affirm the district court’s

ruling.

C. Plaintiffs’ Equal Protection Claims

While we do not approve of promoting friends over others who

may have superior objective qualifications, we cannot say that

such a practice is not rationally related to a legitimate

governmental objective. See Kotch v. Bd. of River Port Pilot

Comm’rs., 330 U.S. 552, 563 (1947) (upholding nepotistic system

of appointing State-employed pilots as rationally related to the

legitimate governmental interest of “morale and esprit de

corps”). Thus, the district court correctly granted Defendants’

Federal Rule of Civil Procedure 12(b)(6) motion on the ground

that Plaintiffs failed to present a Fourteenth Amendment equal

protection violation. Accordingly, we affirm the district
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court’s ruling.

The denial of summary judgment for Defendants on Foster’s §

1983 claim is REVERSED. The rulings of the district court are

otherwise AFFIRMED. This matter is REMANDED for further

appropriate proceedings.