REVISED July 9, 2019

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-10353

NORVIS HARMON, 

 Plaintiff - Appellant

v.

DALLAS COUNTY, TEXAS; DERICK EVANS, 

 Defendants - Appellees

Appeal from the United States District Court 

for the Northern District of Texas

Before REAVLEY, ELROD, and WILLETT, Circuit Judges.

PER CURIAM:

This case is about an employment relationship that did not turn out well. 

Norvis Harmon, a former deputy constable, brought this action under 42 

U.S.C. § 1983 against Dallas County and then-Constable Derick Evans. He 

alleges the defendants violated his First Amendment rights when he was 

terminated for reporting the illegal acts of Evans and others to lawenforcement authorities. Harmon additionally alleges the defendants denied 

him equal protection of the law in refusing to hear his grievance.

United States Court of Appeals

Fifth Circuit

FILED

June 21, 2019

Lyle W. Cayce

Clerk

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This is Harmon’s second lawsuit based on these facts, as he previously 

filed a state-court lawsuit against Dallas County aggrieving the circumstances 

of his termination. He did not enjoy a favorable judgment in that suit.

The district court below disposed of Harmon’s claims through a series of 

summary-judgment and 12(c) rulings.1 The district court dismissed Harmon’s 

claims against Dallas County as barred by res judicata,2 and dismissed 

Harmon’s claims against Evans in his individual capacity on the basis of 

qualified immunity.3 For the reasons stated herein, we AFFIRM.

I.

Harmon is a former deputy constable in Precinct 1 of the Dallas County 

Constable’s Office. During his employment, Harmon became aware that Evans 

and his other superiors were up to some not-so-good things, to wit: (1) requiring 

deputies to work for Evans’s political allies without pay; (2) requiring deputies 

to donate time and money to Evans’s re-election campaign; (3) illegally setting 

quotas for writing traffic citations; and (4) requiring deputies to tow citizens’

vehicles after traffic stops, and to do so with a certain towing company with 

whom Evans shared a close relationship.

In November 2009, Harmon reported these activities to Defenbaugh & 

Associates, an investigative firm hired by the Dallas County Commissioner’s 

Court. Harmon alleges he made similar reports to the Dallas County Human 

Resources Department, the Dallas County District Attorney, and the Federal 

Bureau of Investigation.

 

1 See generally Harmon v. Dall. Cty., Tex. (Harmon II), 294 F. Supp. 3d 548 (N.D. Tex. 

2018); Harmon v. Dall. Cty., Tex., No. 3:13-CV-2083-L, 2017 WL 3394724 (N.D. Tex. Aug. 8, 

2017) (denying Harmon’s motion to recuse); Harmon v. Dall. Cty., Tex. (Harmon I), 248 F. 

Supp. 3d 814 (N.D. Tex. 2017). 2 Harmon I, 248 F. Supp. 3d at 822.

3 Id. at 823–24; Harmon II, 294 F. Supp. 3d at 576.

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Things then went downhill. Word spread that certain deputies were 

speaking out, prompting Evans to call a meeting in which he made couched 

threats that he would retaliate against those who did. In March 2010, the 

Dallas Morning News published an article describing the results of the 

investigation and confirmed that certain deputies had spoken out against 

Evans’s illegal activities.4 Although the article did not identify any of the 

deputies by name, a separate investigative report did.5

Evans later initiated an administrative investigation into Harmon and, 

finding at least one discrepancy in Harmon’s GPS reports, terminated him 

(from employment) on June 3, 2011. Harmon tried to grieve his termination to 

Evans, as his department head, and to Dallas County. These attempts were 

not successful, because deputy constables hired after August 19, 2003 are 

excluded from the Dallas County Civil Service Commission’s grievance system 

procedure.6 As Harmon was hired in 2008, he did not have grievance rights. 

So, Harmon turned to litigation.

Harmon first sued Dallas County in Texas state court. He asserted 

claims for alleged violations of the Texas Whistleblower Act and Texas 

Government Code § 617.005,7 and an equal protection violation under the 

 

4 Kevin Krause & Ed Timms, Report: Dallas County Constable Derick Evans May Have 

Broken Law With Re-election Raffles, Not Paying Deputies For Off-duty Work, DALLASNEWS

(March 2010), https://www.dallasnews.com/news/crime/2010/03/04/Report-Dallas-CountyConstable-Derick-9350. 5 Evans was eventually convicted for engaging in organized criminal activity. The

conviction was affirmed on appeal. Evans v. State, No. 05-12-01179-CR, 2014 WL 1415093, 

at *1 (Tex. App.—Dallas Mar. 28, 2014, pet. ref’d). 6 See DALLAS CTY., TEX., CODE OF ORDINANCES ch. 86, art. I, § 86.1(1) (“Category A 

employee includes . . . deputy constables hired after August 19, 2003 . . . . [C]ategory A 

classified employees are excluded from coverage afforded in employment procedures relating 

to job posting, reduction-in-force, double-fill, reinstatement, reemployment, dismissals, right 

of appeal, and grievance system procedures of this Code.”).

7 TEX. GOV’T CODE § 617.005 (“This chapter does not impair the right of public 

employees to present grievances concerning their wages, hours of employment, or conditions 

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Texas Constitution. In addition, Harmon sought injunctive relief and 

declaratory relief in connection with his equal protection claim, and a 

declaration that Evans’s actions were “illegal and void.” Evans was not a party 

to the state-court action. 

The County moved to dismiss Harmon’s suit for lack of subject-matter 

jurisdiction, arguing that governmental immunity barred Harmon’s 

constitutional claims, as well as those brought under the Whistleblower Act 

and Local Government Code. The County also argued that Harmon’s requests 

for injunctive and declaratory relief embraced ultra vires acts that could only 

be asserted against Evans, who was not a party to the suit. The court agreed 

with the County, dismissed Harmon’s claims with prejudice, and granted

Harmon the opportunity to replead his claims for declaratory and injunctive 

relief. Harmon did not, and the state court eventually entered final judgment 

disposing of all claims and parties on November 7, 2013.

Harmon brought his second suit in federal court, asserting two claims 

under § 1983: (1) a retaliation claim under the First Amendment, and (2) an 

equal protection claim based on the denial of his right to petition the 

government. In addition to suing the County (again), Harmon also sued Evans 

in both his individual and official capacities. Evans asserted the defense of 

qualified immunity, so the district court ordered Harmon to file a Rule 7(a) 

reply. Afterwards, Evans filed a Rule 12(c) motion for judgment on the 

pleadings based on his qualified-immunity defense, and both defendants later 

filed a limited motion for summary judgment asserting that res judicata barred 

Harmon’s federal suit.8

 

of work either individually or through a representative that does not claim the right to 

strike.”).

8 We have simplified the motion practice before the district court. 

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The district court held that res judicata barred Harmon’s suit as to the

County and Evans in his official capacity, and then granted Evans’s Rule 12(c) 

motion on the basis of qualified immunity as to Harmon’s First Amendment 

retaliation claim.9 Harmon, however—and to the apparent surprise of the 

district court and the parties—argued that he still had lingering claims under 

the First Amendment’s Petition Clause. The district court granted Evans the 

opportunity to file a dispositive motion on those claims,10 and then granted his 

motion when he did.11 Harmon timely appealed.

II.

Harmon brings three issues on appeal. He first argues that res judicata 

does not apply to this case. Next, he argues the district court erred in granting 

Evans qualified immunity on his First Amendment retaliation claim because 

his right to engage in the speech at issue was clearly established at the time of 

his termination. Finally, Harmon contends the district court was wrong to 

grant Evans qualified immunity on his claims under the First Amendment’s 

Petition Clause. We address each in turn.

III.

We apply Texas law to determine the res judicata effect of a Texas 

judgment, and our review is de novo. Sims v. City of Madisonville, 894 F.3d 

632, 644 (5th Cir. 2018); Cox. v. Nueces Cty., Tex., 839 F.3d 418, 420–21 (5th 

Cir. 2016). Under Texas law, res judicata requires “(1) a prior final judgment 

on the merits by a court of competent jurisdiction; (2) identity of parties or 

 

9 Harmon I, 248 F. Supp. 3d at 818 n.5, 825.

10 Id. at 825 (“The court is, therefore, dismayed with Plaintiff’s recent assertion 

regarding a ‘First Amendment Petition Claim,’ as this litigation that has been pending four 

years. Out of fairness to Evans, the court will allow him to file a dispositive motion regarding 

this claim by April 28, 2017.”).

11 Harmon II, 294 F. Supp. 3d at 576 (granting Evans’s summary-judgment motion on 

the basis of qualified immunity).

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those in privity with them; and (3) a second action based on the same claims 

as were raised or could have been raised in the first action.” Amstadt v. U.S. 

Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996). Applying these principles, we 

conclude that res judicata bars Harmon’s claims against the County and Evans 

in his official capacity, but not as to Evans in his individual capacity.

The first element is met because, under Texas law, a dismissal based on 

governmental immunity constitutes a final judgment on the merits for 

purposes of res judicata. See Sims v. City of Madisonville, 894 F.3d 632, 644 

(5th Cir. 2018) (“We have held that, under Texas law, a grant of a plea to the 

jurisdiction is a dismissal on the merits for purpose of res judicata.”); Klein v. 

Walker, 708 F. App’x. 158, 160 (5th Cir. 2017) (unpublished) (“[A] dismissal on 

immunity grounds under Texas law is a dismissal on the merits for purposes 

of res judicata.”). As mentioned, the state court dismissed Harmon’s claims 

with prejudice based on the County’s assertion that it was entitled to 

governmental immunity and later entered a final judgment disposing of all 

claims and parties. This element is met.

The third element presents an easy solve under Texas’s “transactional” 

approach. “Under this approach, a judgment in an earlier suit ‘precludes a 

second action by the parties and their privies not only on matters actually 

litigated, but also on causes of action or defenses which arise out of the same 

subject matter and which might have been litigated in the first suit.’” Getty Oil 

Co. v. Ins. Co. of N. Am., 845 S.W.2d 794, 798 (Tex. 1992) (citation omitted). In 

this case, both of Harmon’s suits arise from the same operative facts and 

subject matter—Harmon’s allegedly unlawful termination and his inability to 

file a grievance. See Sims, 894 F.3d at 645. And, as the district court observed, 

nothing prevented Harmon from bringing his federal claims in state court. See 

id. We conclude this element is also met. 

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Stepping back, the second element—privity—presents a closer question, 

but our decision in Warnock v. Pecos County, Texas, 116 F.3d 776 (5th Cir. 

1997) supplies the answer.12 Warnock stands for the basic proposition that 

privity does not exist between a governmental entity and an employee later

sued in his or her individual capacity. See id. at 778. The plaintiff in Warnock

alleged that two state district court judges retaliated against her for 

whistleblowing. Although her initial state-court suit against the county was 

unsuccessful, the plaintiff later filed suit in federal court against the county 

and the judges in their official and individual capacities. Id. at 777. The district 

court concluded that res judicata barred suit against the judges in both 

capacities, but we disagreed, holding that privity was lacking “between the 

county and judges in their individual capacities.” Id. at 778. We cited to Conner 

v. Reinhard for support, in which the Seventh Circuit explained that “a city 

official sued in his official capacity is generally in privity with the 

municipality,” but that “[a] government official sued in his personal capacity, 

however, presents a different case.” 847 F.2d 384, 394–95 (7th Cir. 1988). The 

reasons for drawing this distinction are legion:

If the plaintiff prevails against the official, the official must satisfy 

the judgment out of his own pocket, rather than having the 

government entity pay the damages. See Kentucky v. Graham, 473 

U.S. 159, 166, 105 S. Ct. 3099, 3105, 87 L.Ed.2d 114 (1985). In 

addition, different legal theories may be necessary to prove 

liability in a personal-capacity, as opposed to an official-capacity, 

case. Also, different defenses are available to a defendant who is 

sued in his personal capacity. Therefore, courts do not generally 

consider an official sued in his personal capacity as being in privity 

with the government.

 

12 There is no question this element is satisfied as to the County, as it was a party in 

the prior suit.

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Id. at 395 (some citations omitted); see 18A Charles A. Wright & Arthur R. 

Miller, Federal Practice and Procedure § 4458 (3d ed. 1998) (“The relationships 

between a government and its officials justify preclusion only as to litigation 

undertaken in an official capacity.”).13 To that end, district courts in this circuit 

have applied Warnock to circumstances analogous to those at hand. See Benson 

v. City of Texas City, Tex., No. 3:13-CV-23, 2014 WL 948901, at *4 (S.D. Tex. 

Mar. 11, 2014) (Costa, J.) (“The defendants argue that the Court should look 

‘pragmatically’ at the privity issue by deciding whether the parties are 

‘sufficiently close.’ But Warnock makes clear that defendants sued in their 

individual capacities are not ‘sufficiently close’ to their public employers for the 

logical reason that they both have different defenses.”). Thus, res judicata does 

not bar Harmon’s individual-capacity claims against Evans.

But we agree with the district court that res judicata bars any officialcapacity claims against Evans. An official-capacity claim, after all, is

essentially a claim against the County. See Turner v. Houma Mun. Fire & 

Police Civil Serv. Bd., 229 F.3d 478, 485 (5th Cir. 2000) (observing that when 

“a defendant government official is sued in his individual and official capacity, 

and the city or state is also sued,” the “official-capacity claims and the claims 

against the governmental entity essentially merge”); Olibas v. Dodson, 593 F. 

App’x 412, 413 (5th Cir. 2015) (unpublished) (“[I]t is well-settled that claims 

against a municipal official in his official capacity are claims against the 

county. . . . Therefore, we need not consider the County separate from the 

Sheriff in his official capacity.” (citation omitted)); Lewis v. Pugh, 289 F. App’x 

767, 771 (5th Cir. 2008) (unpublished). Thus, because res judicata bars 

 

13 See also McLellan v. Perry, 672 F. App’x 690, 691 (9th Cir. 2016) (“[P]rivity exists 

between the agency and Defendant Wright, who is sued in his official capacity; but privity 

does not exist between the agency and the other three Defendants, who are sued in their 

individual capacities.”); Headley v. Bacon, 828 F.2d 1272, 1279 (8th Cir. 1987) (“[A] judgment 

against a government does not bind its officials sued in their personal capacities.”).

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Harmon’s claims against the County, it also bars Harmon’s official-capacity 

claims against Evans. However, because res judicata does not bar Harmon’s 

individual-capacity claims, we proceed, as did the district court, to the merits.

IV.

Harmon alleges he was terminated in retaliation for engaging in 

protected speech under the First Amendment. Evans, in a Rule 12(c) motion, 

asserted the defense of qualified immunity. After ordering supplemental 

briefing on this point, the district court held that the law regarding Harmon’s 

speech was not clearly established at the time of his termination and thus 

Evans was entitled to qualified immunity on Harmon’s retaliation claim.14

We review de novo a district court’s ruling on a Rule 12(c) motion for 

judgment on the pleadings asserting qualified immunity. Johnson v. Halstead, 

916 F.3d. 410, 416 (5th Cir. 2019). “A ‘plausibility’ standard determines 

whether the plaintiff has pled sufficient facts to defeat a motion to dismiss.” 

Id. (citation omitted). “When the defendant asserts qualified immunity, the 

court can order the plaintiff to submit a reply, refuting the immunity claim 

‘with factual detail and particularity.’” Id. The plaintiff’s reply “‘must be 

tailored to the assertion of qualified immunity and fairly engage its 

 

14 This case was originally before then-Chief Judge Solis, who denied Evans’s 

qualified-immunity defense. Harmon v. Dall. Cty., No. 3:13-CV-2083-P, 2015 WL 13672837, 

at *4 (N.D. Tex. Dec. 1, 2015) (“The Court is convinced that every reasonable official would 

have understood such retaliation to be in violation of Harmon’s statutory or constitutional 

rights.”). After Judge Solis retired, the case was reassigned to Judge Lindsay, who sua sponte 

revisited this issue. Judge Lindsay vacated that prior order, concluding that the law 

regarding Harmon’s speech was not clearly established at the time of his termination. 

Because the denial of qualified immunity is an interlocutory order, the court was free to 

revisit and request further briefing on that issue. See Lavespere v. Niagara Mach. & Tool 

Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990) (“[B]ecause the denial of a motion for summary 

judgment is an interlocutory order, the trial court is free to reconsider and reverse its decision 

for any reason it deems sufficient, even in the absence of new evidence or an intervening 

change in or clarification of the substantive law.”), abrogated on other grounds, Little v. 

Liquid Air Corp., 37 F.3d 1069 (5th Cir. 1994).

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allegations.’” Id. (quoting Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 

1995)). 

“To evaluate whether a government official is entitled to qualified 

immunity, we conduct a two-prong inquiry: we ask (1) whether the undisputed 

facts and the disputed facts, accepting the plaintiffs’ version of the disputed 

facts as true, constitute a violation of a constitutional right, and (2) whether 

the defendant’s conduct was objectively reasonable in light of clearly 

established law.” Carroll v. Ellington, 800 F.3d 154, 169 (5th Cir. 2015)

(quoting Thompson v. Upshur Cty., Tex., 245 F.3d 447, 457 (5th Cir. 2001)). 

“We have discretion to address either prong first without necessarily 

addressing the other.” Id.

To establish a claim for retaliation under the First Amendment, a 

plaintiff must show, inter alia, that he “spoke as a citizen on a matter of public 

concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006); Anderson v. Valdez, 

845 F.3d 580, 590 (5th Cir. 2016). Although reporting municipal corruption 

undoubtedly constitutes speech on a matter of public concern,15 Garcetti

instructs to “first decide whether the plaintiff was speaking as a citizen 

disassociated with his public duties, or whether the plaintiff was speaking in 

furtherance of the duties of his or her public employment.” Howell v. Town of 

Ball, 827 F.3d 515, 522–23 (5th Cir. 2016). When public employees engage in 

speech pursuant to their official duties, they “are not speaking as citizens for 

First Amendment purposes, and the Constitution does not insulate their 

communications from employer discipline.” Garcetti, 547 U.S. at 421. In 2014, 

 

15 See Lane v. Franks, 573 U.S. 228, 241 (2014) (“The content of Lane’s testimony—

corruption in a public program and misuse of state funds—obviously involves a matter of 

significant public concern.”); Garcetti, 547 U.S. at 425 (“Exposing governmental inefficiency 

and misconduct is a matter of considerable significance.”); Markos v. City of Atlanta, Tex., 

364 F.3d 567, 574 (5th Cir. 2004) (“In this case, we have a public employee speaking out about 

alleged corruption in the police department, a subject undoubtedly of public concern.”).

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the Supreme Court emphasized that “[t]he critical question under Garcetti is 

whether the speech at issue is itself ordinarily within the scope of an 

employee’s duties, not whether it merely concerns those duties.” Lane, 573 U.S. 

at 240. 

We applied these principles in Howell v. Town of Ball, which we find 

controlling. In Howell, we held that a Louisiana police officer’s confidential 

involvement with an FBI-led investigation into the illegal acts of the mayor 

and other local officials was not “in furtherance of his ordinary job duties.” 827 

F.3d at 524. Although we agreed the police officer’s First Amendment rights 

were violated when he was terminated in retaliation for cooperating with the 

FBI’s investigation, we ultimately concluded the defendants were entitled to 

qualified immunity because, at the time of the officer’s termination, “it was not 

clearly established whether his involvement in the FBI investigation was 

protected under the First Amendment.” Id. at 525. We explained that:

At the time that Howell was fired, Garcetti’s distinction between 

speech made pursuant to official duties and speech made as a 

private citizen was relatively new, and this court had not 

considered it in the context of an action involving a police officer’s 

statements to an outside law enforcement agency, or in the context 

of a law enforcement officer’s assistance with an outside agency’s 

investigation. Garcetti, by its own admission, did not “articulate a 

comprehensive framework for defining the scope of an employee’s 

duties in cases where there is room for serious debate.” See 547 

U.S. at 424, 126 S. Ct. 1951. Furthermore, the Supreme Court did 

not emphasize that only speech made in furtherance of an 

employee’s “ordinary” job duties is not protected until nearly three 

years after Howell was discharged.

The lack of the application of Garcetti to similar facts at the time 

of Howell’s discharge, coupled with the Supreme Court’s only 

recent clarification of Garcetti’s citizen/employee distinction 

in Lane, compels us to hold that the Board defendants did not 

violate a “clearly established” constitutional right when voting to 

fire Howell. We thus affirm the district court’s grant of qualified 

immunity to the Board defendants.

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Id. 525–26 (some internal citations omitted). 

The parties here essentially agree that Harmon alleges a violation of his

First Amendment rights; indeed, Evans concedes—ultimately to his 

advantage, of course—that “the facts in Howell are identical to the speech at 

issue in this case.” And Harmon alleges that it was not part of his ordinary 

duties as a deputy constable to report the illegal acts of his supervisors to 

investigators, the FBI, and other authorities. Even so, Harmon’s termination 

occurred just one month prior to the officer’s termination in Howell, where we 

held that it was not clearly established whether a law enforcement officer’s 

involvement in an investigation with outside law-enforcement enjoyed 

protection under the First Amendment. Accordingly, the same result in Howell

must obtain here.16 We thus agree with the district court that Evans is entitled 

to qualified immunity on Harmon’s First Amendment retaliation claim. 

V.

Finally, we address Harmon’s claims under the First Amendment’s 

Petition Clause, which “protects ‘the right of the people . . . to petition the 

Government for a redress of grievances.’” Borough of Duryea, Pa. v. Guarnieri, 

564 U.S. 379, 382 (2011) (quoting U.S. CONST. AMEND I.).

 

16 Harmon directs us to Cutler v. Stephen F. Austin State University in support of his 

argument that the law regarding his speech was clearly protected at the time of his 

termination. 767 F.3d 462, 472 (5th Cir. 2014) (“Several pre–2010 decisions have, however, 

given the Defendants the ‘fair warning’ they need.”). However, whether the law was clearlyestablished at the time of Harmon’s termination requires us to consider the specific context 

of the case. See Anderson v. Valdez, 913 F.3d 472, 476 (5th Cir. 2019) (“[W]e are ‘not to define 

clearly established law at a high level of generality,’ but rather are to pay close attention to 

‘the specific context of the case.’” (citation omitted)). Cutler did not involve a law-enforcement 

officer’s reporting the illegal acts of his superior to outside law-enforcement authorities, so 

we follow Howell.

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As best we can tell, Harmon attempts to bring two “petition” claims.17

The first appears to be a straight-up petition claim based on Evans’s refusal to 

hear his grievance; that is, Harmon alleges that Evans’s refusal to hear his 

grievance violated his “fundamental” right to petition the government.

Harmon’s second claim appears to be an equal-protection variant and is 

similarly based upon Evans’s refusal to hear his grievance. We address each in 

turn.18

Harmon’s first theory fails for the very basic reason that his attempted 

grievance involved a matter of private concern. Indeed, “[i]f a public employee 

petitions as an employee on a matter of purely private concern, the 

employee’s First Amendment interest must give way, as it does in speech 

cases.” Id. at 398. To be clear, Harmon’s speech—his reporting illegal conduct, 

which is a matter of public concern—is not at issue here; rather, the issue 

concerns Harmon’s grievance. By its very nature, however, an employee’s 

grievance from termination will not ordinarily constitute a matter of public 

concern. See id. (“A petition filed with an employer using an internal grievance 

procedure in many cases will not seek to communicate to the public or to 

advance a political or social point of view beyond the employment context.”); 

Gibson v. Kilpatrick, 838 F.3d 476, 487 (5th Cir. 2016) (“Internal personnel 

disputes and management decisions are rarely a matter of public concern.”). 

We think the district court said it well:

There is no evidence that Harmon was using the petition appealing 

his employment termination as a platform to publicly air his 

 

17 Harmon gears much of his Petition Clause arguments towards Dallas County and 

its decision to exclude deputy constables hired before August 19, 2003 from its grievance

system. Because we hold that res judicata bars Harmon’s claims against the County and 

Evans in his official capacity, we do not address these arguments. 

18 The district court held that Harmon’s Petition Clause claims were not properly 

before the court but nevertheless addressed them on the merits. We limit our analysis here 

to the merits. 

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concerns about Evans’s conduct. He, instead, was merely using the 

petition to appeal the termination of his employment as any 

employee, private or public, would do. In other words, the point of 

Harmon’s appeal was not to present concerns about Evans’s 

conduct but to seek reinstatement of his employment as deputy 

constable with the County. 

Harmon II, 294 F. Supp. 3d at 571. In addition, that Harmon’s remaining claim 

here is against Evans in his individual capacity—and thus seeks damages from 

him personally—underscores our conviction that Harmon’s attempt to grieve 

his termination with Evans constituted but a matter of private concern. See 

Gibson, 838 F.3d at 487 (“The form of Gibson’s suit—personal capacity—

provides significant support for the conclusion that it was not a matter of public 

concern.”). Finding no violation of Harmon’s First Amendment right to 

petition, we agree with the district court that Evans was entitled to qualified 

immunity on this claim.

To succeed on his equal protection claim, Harmon must show that “two 

or more classifications of similarly situated persons were treated differently.” 

Gallegos-Hernandez v. United States, 688 F.3d 190, 195 (5th Cir. 2012). 

Harmon, however, alleges in his Rule 7(a) reply that Evans “had a policy and/or 

a regular practice to not hear grievances of employees, including grievances by 

deputy constables.” Thus, Harmon does not allege that Evans treated similarly 

situated deputy constables differently; to the contrary, Harmon alleges that 

Evans’s regular practice was to refuse grievances all together, and his equal 

protection claim fails for that reason. The district court did not err in granting 

Evans qualified immunity on this claim. 

AFFIRMED.

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