*Pursuant to 5

TH CIR. R. 47.5, the Court has determined that this opinion should not be

published and is not precedent except under the limited circumstances set forth in 5

TH CIR.

R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 97-11352

DEBORAH A. BRANTON,

Plaintiff-Appellant,

versus

CITY OF DALLAS, TEXAS; BENNIE R. CLICK,

Chief of Police, Individually and in his Official Capacity,

Defendants-Appellees.

Appeal from the United States District Court

For the Northern District of Texas

( 3:97-CV-245-P)

December 10, 1998

Before POLITZ, Chief Judge, EMILIO M. GARZA and STEWART, Circuit Judges.

PER CURIAM:*

Deborah A. Branton appeals a Fed.R.Civ.P. 12(b)(6) dismissal of her 42

U.S.C. § 1983 complaint against her superior, Bennie R. Click, chief of police of

Dallas, Texas, in his official and individual capacity. She alleges violation of her

first amendment rights as a consequence of subjecting her to adverse employment

actions because she reported the false testimony of a fellow officer in an internal
 

1Branton also filed a § 1983 claim against the City of Dallas and a pendentstate law claim

against both defendants under the Texas Whistleblower Act,Tex. Gov. Code § 554.001 et

seq. These also were dismissed but these dismissals are not at issue in this appeal.

2

department proceeding against another officer. The district court dismissed the

complaint, holding that Chief Click is entitled to qualified immunity.1

BACKGROUND

For purposes of a Rule 12(b)(6) review, the well pled allegations of the

complaint are accepted as true. The pertinent facts for present purposes are these.

Branton has been employed by the Dallas Police Department since 1977. She has

been a sergeant in the Office of Professional Standards, Internal Affairs Division

since 1989. After nearly two decades, her departmental resume contained twentyone commendations and no indication of any reprimands for misconduct. Prior to

the events leading up this action, her duties included investigating internal

departmental complaints and appearing at resulting administrative appeal hearings,

in part to ensure that no false or inaccurate information was offered.

In July 1995, Branton was assigned to investigate a complaint filed by

Officer DeLois Thomas against Officers Thomas Popken and Billy Hattaway. The

investigation culminated in disciplinary action against Officer Popken. He

appealed. On November 26, 1996, a hearing on the appeal was held before the

Assistant City Manager, Levi Davis, the ultimate decision-maker in the matter; his

decision wasfinal and unappealable. During the hearing, Officer Thomas provided

testimony that Branton believed to be false, and, after the hearing, she informed

Davis of her belief. This conduct violated no departmental rules, regulations, or
 

2Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Scheuer v. Rhodes, 416 U.S. 232, 236

(1974); Baker v. Putnal, 75 F.3d 190, 196-97 (5th Cir. 1996). 

3

policies, and Branton did not disobey any pertinent orders or instructions. To the

contrary, she had been trained and urged to report dishonesty whenever it was

encountered.

Shortly thereafter Branton’s supervisors informed her that as a result of her

conversation with Davis -- which they believed was improper -- she would be

transferred; subsequently, her job performance was downgraded. Although her

transfer was postponed and, as of the filing of her complaint, wasstill under review,

she suffered other detrimental job consequences: for instance,she ceased receiving

new case assignments; she was deprived of direct supervisory authority over the

officers she previously commanded; and she was relegated exclusively to taking

“walk-in” complaints, a task generally regarded as undesirable and one that

previously had been rotated among officers. A formal disciplinary complaint was

lodged against her based on her conversation with Davis.

Branton’s complaint alleges that the adverse job consequences constitute

unlawful retaliatory action in violation of the first amendment.

ANALYSIS

We review de novo a district court’s dismissal under Rule 12(b)(6).

Dismissal is appropriate when, accepting all well-pleaded facts astrue and viewing

them in the light most favorable to the plaintiff, “it appears beyond doubt that the

plaintiff can prove no set of facts in support of [her] claim which would entitle

[her] to relief.”2
Defendant circuitously suggests that plaintiff’s pleading falls short of the standard

articulated in Schultea v. Wood, 47 F.3d 1427 (5th Cir. 1995) (en banc). But Click did not

request the district court to order Branton to submit a particularized reply to his defense of

qualified immunity, and the district court did not do so on its own. On remand that decision

perhaps ought to be revisited.

 

3Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

 

4Siegert v. Gilley, 500 U.S. 226, 231 (1992).

 

5Anderson v. Creighton, 483 U.S. 635, 638 (1987); see Hopkins v. Stice, 916 F.2d

1029, 1030-31 (5th Cir. 1990) (a government official “enjoys qualified immunity if a

reasonable official would be left uncertain of the application of the standard to the facts

confronting him”).

4

Qualified immunity provides government officials with a limited affirmative

defense against claims based on their performance of public duties. A government

official is entitled to qualified immunity unless his “conduct . . . violate[s] [a]

clearly established statutory or constitutional right[] of which a reasonable person

would have known.”3 To overcome the defense of qualified immunity, the plaintiff

must plead (1) transgression of a right that was clearly established at the time the

defendant acted,4and (2) conduct that was objectively unreasonable in light of the

specific facts at issue.5

Branton contends that the trial court erred in concluding that no

constitutional violation had occurred because her speech did not warrant first

amendment protection. At the very least, viewing the facts as set forth in the

complaint, which is all we may consider under Rule 12(b)(6), the decision was

prevenient.

It cannot be gainsaid that government employees have no unfettered right to

disrupt the workplace at whim simply because of the fact that they are employed
 

6See Connick v. Myers, 461 U.S. 138, 146-47 (1983); Pickering v. Board of Educ., 391

U.S. 563, 568 (1968).

 

7Pickering, 391 U.S. at 568.

 

8Connick, 461 U.S. at 146. The question is one that must be resolved as a matter of law

by the court. Click v. Copeland, 970 F.2d 106, 112 (5th Cir. 1992).

 

9Pickering, 391 U.S. at 568; McBee v. Jim Hogg County, 730 F.2d 1009 (5th Cir. 1992)

(en banc).

 

10

If the protected speech does not provoke the retaliatory act, the plaintiff has no cause

of action. See Jones v. Collins, 132 F.3d 1048 (5th Cir. 1998). Click does not dispute that

Branton was disciplined because of her communication with Davis.

5

by the government.6 Nevertheless, it is beyond debate that public employees “may

[not] be compelled to relinquish the First Amendment rights they would otherwise

enjoy as citizens to comment on matters of public interest in connection with the

operation of the [government entity] in which they work.”7 The competing

interests of the government as employer and the employee as citizen are reconciled

through a two-part test. Initially, it must be determined whether the employee’s

speech addresses a “matter of political,social, or other concern to the community.”8

If not, any further inquiry must be curtailed, because no first amendment violation

has occurred. If so, it must be determined whether the employee’s interest in

expression outweighsthe government’sinterest in “promoting the efficiency of the

public services it performs.”9 Where an employee’s interest in speaking out on a

matter of public concern outweighs the government’s countervailing interest, the

employee is entitled to first amendment protection.10

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

be determined by the content, form, and context of a given statement, as revealed
 

11Connick, 461 U.S. at 147-48.

 

12Schultea v. Wood, 27 F.3d 1112, 1120 (5th Cir. 1994) (“No reasonable public official

in 1992 could have assumed that he could retaliate against an employee because that

employee disclosed instances of misconduct by a public official.”), superseded on other

grounds, 47 F.3d 1427 (1995) (en banc).

 

13Brawner 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 . . ., especially when it

concerns the operation of a police department.”).

 

14Davis v. Ector County, 40 F.3d 777, 782 (5th Cir. 1995); Denton v. Morgan, 136 F.3d

1038, 1043 (5th Cir. 1998) (same); see Thompson v. City of Starkville, 901 F.2d 456, 457

(5th Cir. 1990) (finding public interest implicated where employee alleged “‘acts of

dishonesty andmisconduct includ[ing]such matters as[police officers] having extra-marital

affairs while on duty, mistreatment of black persons, and theft of confiscated property.’”)

(first alteration in original).

 

15Thompson, 901 F.2d at 463 (quoting Conaway v. Smith, 853 F.2d 789, 796 (10th Cir.

1988) (per curiam)); see Brockell v. Norton, 688 F.2d 588 (8th Cir. 1982) (balancing test

appliesto determinewhetherfirst amendment protects officer who broke chain-of-command

to report misconduct in police certification procedures). 

Both parties agree that the suspension of Officer Popken relates to an alleged

certification irregularity.

6

by the record as a whole.”11 It is undisputed that, at the time Click acted, speech

relating to improper acts by public officials qualified as a matter of public

concern.12 Our cases have long made clear that speech exposing official

misconduct, particularly within the police department, is generally of great

consequence to the public.13 As we have emphasized, “[t]here is perhaps no subset

of matters of public concern more important, for purposes of First Amendment

protection of speech of public employees, than bringing official misconduct to

light.”14 This includes “‘[s]peech which discloses any evidence of corruption,

impropriety, or other malfeasance on the part of city officials.’”15 

We cannot accept the conclusion that the complaint alleges only a purely
 

16 Compare Wicks v. Mississippi State Employment Servs., 41 F.3d 991, 996 (5th Cir.

1995) (protest against poor write-ups qualify as “an attempt to redress a personal

grievance”). Of course, the absence of potential private benefit does not, ipso facto, indicate

that speech is publicly important. But the lack of any identifiable motive relating to the

advancement of private interests gives credence to appellant’s contention that her speech

addressed a matter of public import. Cf. Thompson, 901 F.2d at 465-66.

7

private affair involving an internal police policy. Viewing the allegations most

favorably to Branton, as we must in a Rule 12(b)(6) assessment, we have a police

officer being purposely untruthful in a proceeding involving the validity of

disciplinary action against another officer. Providing false testimony during a

quasi-judicial proceeding where punitive action is taken against another officer

qualifies as official misconduct in which the public has a serious interest. The

public interest demands that administrative hearings, which may serve as the

exclusive grievance mechanism for law enforcement personnel, be free from the

taint of false testimony. Denying employees first amendment protection in

revealing improprieties as grave as false testimony raises the spectre of chilling

their incentive to advance the truth. Silencing such employees is manifestly

contrary to the public interest.

It is suggested that the speech at issue was not a matter of public interest but

was, rather, a matter of merely personal interest. We are not persuaded. Based on

the complaint, it is nigh impossible to fathom the personal gain Branton could have

hoped to achieve by speaking out.16

Having determined that Branton’s speech touched upon matters of public

concern, we must then inquire whether the balance of interests tips in defendant’s

favor. “In performing the balancing, the [speech] will not be considered in a
 

17Rankin v. McPherson, 483 U.S. 378, 388 (1987) (citations omitted).

 

18Id.

 

19Matherne v. Wilson, 851 F.2d 752, 760 (5th Cir. 1988); Click, 970 F.2d at 112.

 

20Baker, 75 F.3d at 196. Unlike in Baker, Fed. R. Civ. P. 12(c) does not come into play

here, because the district court relied on facts asserted in defendant’s memoranda.

8

vacuum; the manner, time, and place of the employee’s expression are relevant.”17

Other “pertinent considerations[include] whether the statement impairs discipline

by superiors or harmony among co-workers, has a detrimental impact on close

working relationships for which personal loyalty and confidence are necessary, .

. . impedes the performance of the speaker’s duties or interferes with the regular

operation of the enterprise,”18 or “can be considered hostile, abusive, or

insubordinate.”19 The trial court reasoned that, even assuming Branton’s speech

implicated an issue of public concern, the government’s interest in maintaining an

orderly workplace trumped her interest in expression. To reach this conclusion, the

court necessarily had to look beyond the four corners of the complaint, accepting

as true defendant’s apparent assertions in its filings. This we may not do in a Rule

12(b)(6) review.20

Concluding that the district court went beyond the pale of a Rule 12(b)(6)

review we must VACATE the judgment appealed and REMAND for further

proceedings consistent herewith.