     Case: 12-11171       Document: 00512426445         Page: 1     Date Filed: 10/31/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                         October 31, 2013

                                     No. 12-11171                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



MATTHEW PETRIE,

                                                  Plaintiff-Appellee
v.

EDWARD SALAME, in his individual capacity,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 3:11-CV-715


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Edward Salame brings this interlocutory appeal challenging the district
court’s denial of his motion for summary judgment based on qualified immunity.
We AFFIRM.
                FACTUAL AND PROCEDURAL BACKGROUND
       Matthew Petrie began working as a patrol officer for the City of Grapevine
Police Department in 1988. In 1996, he was placed by the Department as the


       *
         Pursuant to 5TH 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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full-time School Resource Officer (“SRO”) at Grapevine Middle School. During
his sixth year on the force, Petrie began teaching the Drug Abuse Resistance
Education (“DARE”) program at Grapevine Middle School and continued to do
so after being installed as the full-time SRO at the school. In 2002, Petrie began
serving as treasurer of the Texas DARE Officers Association, an independent
non-profit organization that provides support for DARE programs.
      Toward the end of the 2008-09 school year, Petrie learned the Grapevine-
Colleyville Independent School District, of which Grapevine Middle School was
a part, was considering eliminating its DARE program. Petrie met with Tommy
Ingram, then-Chief of Police for the City of Colleyville, in his office to discuss
retaining and improving the DARE program.           Later, Petrie met with the
defendant, Edward Salame, Grapevine’s Chief of Police, to discuss the decision
to discontinue the DARE program. Salame asked Petrie whether he had met
with anyone else to discuss the DARE program. Petrie admitted to meeting with
Ingram. Salame informed Petrie that in doing so he had gone outside of the
chain of command. Within a few months of his meeting with Salame, Petrie
learned he had been transferred from SRO to uniform patrol duties.
      On April 7, 2011, Petrie filed suit against Salame and the City of
Grapevine, asserting claims under 28 U.S.C. § 1983. Petrie alleged that the
defendants transferred him in retaliation for exercising his right of free speech
protected by the First Amendment. The City of Grapevine and Salame filed a
Rule 12(b)(6) motion to dismiss, or in the alternative, a Rule 56 motion for
summary judgment. Salame also asserted a qualified immunity defense.
      The district court granted summary judgment to the City, concluding that
none of the bases on which a city could be liable under Section 1983 applied.


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That decision is not before us on this interlocutory appeal. The court denied
summary judgment for Salame on the merits and on his assertion of qualified
immunity. The court held that Petrie had submitted evidence to create a fact
issue on the violation of a clearly established constitutional right, and qualified
immunity was therefore denied. Salame appeals.
                                 DISCUSSION
      There is generally no right to appeal from the denial of summary
judgment, but the denial of a summary judgment motion that asserts qualified
immunity may be reviewed immediately as a collateral order. Kinney v. Weaver,
367 F.3d 337, 346 (5th Cir. 2004) (en banc). We only examine issues of law. Id.
We may review “the purely legal question whether a given course of conduct
would be objectively unreasonable in light of clearly established law.” Id. at 347.
In assessing whether a course of conduct is objectively unreasonable, we may
consider only “whether the district court erred in assessing the legal significance
of the conduct that the district court deemed sufficiently supported for purposes
of summary judgment.” Id. at 348. Our review is de novo. Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010).
      Whether a public official is entitled to qualified immunity under Section
1983 requires a two-step analysis. We examine “(1) whether the plaintiff has
alleged a violation of a constitutional right, and (2) whether the defendant’s
conduct was objectively reasonable in light of the clearly established law at the
time of the incident.” Charles v. Grief, 522 F.3d 508, 511 (5th Cir. 2008).
      Salame contends Petrie’s statements were not protected under the First
Amendment. Even if they were, Salame argues that his conduct was not




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objectively unreasonable in light of clearly established law. We address each
contention.


I. Whether Petrie’s speech is protected under the First Amendment
      Whether Petrie’s speech is protected under the First Amendment is a
question of law. We have jurisdiction to address that issue. Davis v. McKinney,
518 F.3d 304, 310 (5th Cir. 2008). To establish a Section 1983 First Amendment
retaliation claim, Petrie must prove: “(1) the plaintiff suffered an adverse
employment decision, (2) the plaintiff’s speech involved a matter of public
concern, (3) the plaintiff’s interest in speaking outweighed the governmental
defendant’s interest in promoting efficiency, and (4) the protected speech
motivated the defendant’s conduct.” Juarez v. Aguilar, 666 F.3d 325, 332 (5th
Cir. 2011) (quotation marks omitted). “Whether the speech at issue is on a
matter of public concern is a question of law that must be determined by the
court.” Salge v. Edna Indep. Sch. Dist., 411 F.3d 178, 184 (5th Cir. 2005).
      Salame contends Petrie’s statements were made pursuant to his official
duties on a matter of private concern, and thus not protected under the First
Amendment. To determine whether a public employee spoke as a citizen on a
matter of public concern we focus on the role the speaker occupied when
speaking and whether the speech was part of, or closely related to, his job duties.
Davis, 518 F.3d at 312. The district court found that Petrie spoke off-duty and
out of uniform to someone outside of his chain of command on a matter of school
curriculum, i.e., retaining the DARE program. The court concluded the evidence
did not support a determination that Petrie’s speech was related to his SRO job
duties, and the content of his speech indicated that he spoke primarily as a


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citizen. We agree with the district court and reject Salame’s contention that
Petrie was acting pursuant to his official duties or speaking on a matter of
private concern as a matter of law.
      Even if an employee speaks on a matter of public concern, his speech is not
protected unless his interest in expressing himself outweighs the government’s
interest “in promoting the efficiency of the public services it performs through
its employees.” Pickering v. Bd. of Ed., 391 U.S. 563, 568 (1968). The district
court concluded that nothing in the evidence suggested that Petrie’s speech had
any potential or actual disruptive impact on the Grapevine Police Department’s
operations. We agree that, on balance, Petrie’s interest in speaking in favor of
the DARE program outweighed the City’s interest in efficiency.
      Finally, Salame argues that Petrie did not suffer an adverse employment
action. A transfer may be considered a demotion “if the new position proves
objectively worse – such as being less prestigious or less interesting or providing
less room for advancement.” Sharp v. City of Houston, 164 F.3d 923, 933 (5th
Cir. 1999). The evidence showed that a patrol officer was typically an entry-level
position with a lower level of prestige than the SRO position. Further, Petrie’s
schedule as a patrol officer required work on Saturdays and holidays as well as
requiring more dangerous and physically taxing duties. The district court
concluded that, at the very least, a fact question exists as to whether transfer to
a patrol officer was objectively worse than Petrie’s position as an SRO officer.
Relying on the facts found by the district court, we reject Salame’s argument
that Petrie’s transfer to patrol duty was not an adverse employment action as
a matter of law.




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      To the extent Salame raises the issue of whether Petrie’s transfer was
factually related to his speech, we lack jurisdiction over such fact issues. See
Charles, 522 F.3d at 516. Our jurisdiction is limited to the extent the denial of
qualified immunity turns on issues of law. Kinney, 367 F.3d at 346. Further,
the district court concluded that Salame failed to provide adequate briefing on
the issue of causation and therefore had not disproved it as a matter of law.
Because inadequate briefing prevented consideration of this issue by the district
court, we also should not review it on appeal. See Audler v. CBC Innovis Inc.,
519 F.3d 239, 255 (5th Cir. 2008).
      The district court found that the summary judgment evidence at least
created disputes of material fact in support of Petrie’s claim of a constitutional
violation. Based on those findings, Salame has failed to prove that Petrie’s
speech was not entitled to First Amendment protection.


II. Whether Salame’s conduct was objectively reasonable in light of clearly
     established law.

      The second step in the qualified immunity analysis is to decide whether
the challenged conduct was objectively reasonable in light of clearly established
law at the time of the incident. To be clearly established, “[t]he contours of the
right must be sufficiently clear that a reasonable official would understand that
what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635, 640
(1987).
      At the time of the alleged violation here, “both Supreme Court and Fifth
Circuit law clearly proscribed retaliation by a government employer against an
employee for engaging in protected speech.” Davis, 518 F.3d at 317. More


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specific to the conduct at issue in this case, the law was clearly established that
speech directed to a person outside of the workplace on a matter of public
concern only tangentially related to official duties is speech protected by the
First Amendment. Id. at 313. The district court was correct that any reasonable
official would have concluded that Petrie’s off-duty advocacy for the DARE
program to a source outside of his chain of command fell outside the ambit of
personal employment matters.
      Also unconvincing is Salame’s argument that the law was not clearly
established with respect to whether Petrie suffered an adverse employment
action. At the time of Petrie’s transfer, it was well-established that a transfer
could be an adverse employment action if it was objectively worse, even if not
resulting in a decrease in pay, title, or grade. See Sharp, 164 F.3d at 933. We
stated in Sharp that “objectively worse” could mean “less prestigious or less
interesting or providing less room for advancement.” Id. Any reasonable official
in Salame’s position would have known that transfer from an SRO position to
uniform patrol could be considered unlawful even without affecting rank, pay,
status, or grade.
      AFFIRMED.




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