Breaux v. City of Garland
2000 WL 205082, 205 F.3d 150 (2000)
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Rule of Law:
For a public employee's First Amendment retaliation claim to be successful, the employer's retaliatory conduct must constitute an 'adverse employment action,' which is narrowly defined as a discharge, demotion, refusal to hire, refusal to promote, or an official reprimand that is not subsequently rescinded.
Facts:
- In 1992, Garland Police Chief Terry Hensley initiated an FBI investigation into alleged corruption by several city council members.
- Hensley's subordinate, Officer Jody Lay, attempted to recruit Officer Allen Breaux into an Intelligence Unit to conduct 'political investigations.' Breaux refused and requested a transfer back to patrol duty.
- In early 1994, Breaux, as vice-president of the Garland Police Officers Association (GPOA), told GPOA president Detective Joe Ambrogio about the alleged political investigations.
- During a March 1994 meeting, Breaux revealed his allegations to City Manager Ron Holifield, who threatened to 'destroy' the GPOA but agreed to look into the matter.
- In response, Hensley initiated Internal Affairs (I/A) investigations against Breaux for making false statements and against Ambrogio and other GPOA members regarding missing film from a hidden camera.
- Ambrogio then held a press conference, publicly accusing Hensley and Holifield of running illegal political investigations, which prompted a third I/A investigation against Ambrogio.
- As part of the investigations, Breaux was ordered to undergo a polygraph and a psychiatric exam. The I/A investigations concluded the officers had lied, and Hensley publicly posted these findings and shared them with the media.
- Hensley placed Breaux on paid administrative leave and later offered both officers continued employment if they accepted a short suspension and signed a letter retracting their allegations, which both officers refused.
Procedural Posture:
- Allen Breaux and Joe Ambrogio filed suit in Texas state court against the City of Garland, City Manager Ron Holifield, and Police Chief Terry Hensley, alleging violations of 42 U.S.C. § 1983 and the Texas Whistleblower Act.
- The case was removed to the U.S. District Court for the Northern District of Texas.
- The district court granted summary judgment in favor of the City on the § 1983 claims.
- Following a trial, a jury found Hensley and Holifield individually liable under § 1983 and the City liable on Breaux's Whistleblower Act claim, awarding a total of $27,707,012.
- The district court granted the City's post-trial motion for judgment as a matter of law on the Whistleblower Act claim, finding Breaux failed to exhaust administrative remedies.
- The district court also found some damages unsupported by evidence and required the Plaintiffs to accept a remittitur, which reduced the total award against Hensley and Holifield to approximately $8.8 million.
- Hensley and Holifield (appellants) appealed the judgment to the U.S. Court of Appeals for the Fifth Circuit. Breaux (appellee/cross-appellant) cross-appealed the judgment in favor of the City.
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Issue:
Do a series of retaliatory actions against public employees, including internal affairs investigations, psychological and polygraph testing, public reprimands that are later rescinded, paid administrative leave, and unfulfilled threats of discharge, collectively constitute an 'adverse employment action' sufficient to support a First Amendment retaliation claim under 42 U.S.C. § 1983?
Opinions:
Majority - Judge Edith H. Jones
No, the actions taken against the officers do not constitute an adverse employment action. To establish a constitutional claim for First Amendment retaliation, a plaintiff must suffer an adverse employment action, which this circuit narrowly defines to include discharges, demotions, refusals to hire, refusals to promote, and reprimands. The actions experienced by Officers Breaux and Ambrogio—such as investigations, psychological testing, criticism, and false accusations—do not meet this standard. Although the public reprimands were more serious, they were later rescinded by the new police chief, and under circuit precedent, a rescinded reprimand does not constitute an adverse employment action. Likewise, threats of discharge are not independently actionable; they are 'just hot air' unless a negative employment consequence actually occurs. Even when viewed in the aggregate as a 'vengeful vendetta,' these actions did not amount to a constructive adverse employment action because neither officer was discharged, demoted, or suffered any loss of pay or seniority.
Analysis:
This decision significantly narrows the scope of actionable First Amendment retaliation claims for public employees in the Fifth Circuit. By strictly defining 'adverse employment action' to exclude a campaign of investigations, threats, and even temporarily damaging reprimands, the court raises the bar for plaintiffs. The ruling implies that retaliatory harassment that does not culminate in a tangible, permanent negative employment outcome like termination or demotion is not a constitutional violation. This precedent makes it more difficult for public employees to seek redress for retaliatory conduct that chills speech but stops short of altering their formal employment status or pay.
