     Case: 16-41004      Document: 00513966410         Page: 1    Date Filed: 04/25/2017




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

                                    No. 16-41004
                                                                                    Fifth Circuit

                                                                                  FILED
                                  Summary Calendar                            April 25, 2017
                                                                             Lyle W. Cayce
NORA G. RODRIGUEZ,                                                                Clerk

              Plaintiff - Appellee

v.

CITY OF CORPUS CHRISTI,

              Defendant - Appellant




                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 2:13-CV-134


Before HIGGINBOTHAM, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       In this free speech retaliation case, the Defendant City of Corpus Christi
(the “City”) appeals the district court’s denials of its motions for judgment as a
matter of law and motion for new trial, which resulted in a money judgment
reflecting the jury’s verdict in favor of Plaintiff Nora G. Rodriguez.                        We
REVERSE and RENDER judgment in favor of the City.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                I. Background
      Rodriguez worked as an administrative assistant to the director of the
administrative division at the City’s municipal court. This typically involved
preparing presentations and interview packets, scheduling interviews, typing
correspondence, maintaining the director’s calendar, arranging travel plans,
managing personnel files, and processing invoices and payroll. The director
testified that she acted as “sort of the receptionist. She was my executive
secretary and she held a series of clerical or administrative functions that she
performed.” The assistant director, Monica Lewis, also had authority to assign
Rodriguez projects.
      On October 11, 2012, Rodriguez witnessed an altercation between
Monica Lewis and Sandi Santana, another court employee. Rodriguez testified
that Sandi was very upset and confrontational about an allegation of
corruption. The loud confrontation led Rodriguez to be concerned about her
and Monica’s safety, so much so that she at one point intended to call a
marshal.    After the confrontation, Monica asked Rodriguez to write a
statement about what she witnessed. Rodriguez obliged and forwarded the
statement to the court’s human resources department.         The statement is
excerpted in its entirety:




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      On January 7, 2013, the City terminated Rodriguez’s employment.
Rodriguez sued the City under 42 U.S.C. § 1983, alleging that the City fired
her for exercising her First Amendment right to free speech. The City moved
for summary judgment, which the district court eventually denied. The district
court also denied the City’s pre-verdict motion for judgment as a matter of law,
which was based on similar legal arguments to those made in the City’s motion
for summary judgment. The jury returned a verdict in Rodriguez’s favor, and
she was awarded a judgment of $556,166.66. The City filed a renewed motion
for judgment as a matter of law on substantially the same grounds argued in
its original motion. That motion was also denied. The district court entered
final judgment on March 8, 2016. The City filed a motion for new trial, which
the district court also denied. The City timely appealed.
                            II. Standard of Review
      Our review of a jury’s verdict is “especially deferential.” SMI Owen Steel
Co. v. Marsh U.S.A., Inc., 520 F.3d 432, 437 (5th Cir. 2008) (quoting Flowers v.
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S. Reg’l Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir. 2001)). We review
the denial of a motion for judgment as a matter of law de novo but apply the
same legal standard as the district court. Baisden v. I’m Ready Prods., Inc.,
693 F.3d 491, 498 (5th Cir. 2012). We also draw all reasonable inferences in
the light most favorable to the verdict. Westlake Petrochems., L.L.C. v. United
Polychem, Inc., 688 F.3d 232, 239 (5th Cir. 2012).
                                 III. Discussion
      To succeed in this First Amendment retaliation claim, Rodriguez must
show that: “‘(1) [she] suffered an adverse employment action; (2) [she] spoke as
a citizen on a matter of public concern; (3) [her] interest in the speech
outweighs the government’s interest in the efficient provision of public
services; and (4) the speech precipitated the adverse employment action.’”
Wilson v. Tregre, 787 F.3d 322, 325 (5th Cir. 2015) (quoting Nixon v. City of
Houston, 511 F.3d 494, 497 (5th Cir. 2007)). Evaluation of the second prong is
a question of law to be resolved by the court. Graziosi v. City of Greenville, 775
F.3d 731, 736 (5th Cir. 2015). The City argues that the district court erred in
its ruling as to this legal question, arguing that Rodriguez did not speak as a
citizen. We agree.
      “[W]hen public employees make statements pursuant to their official
duties, the employees are not speaking as citizens for First Amendment
purposes, and the Constitution does not insulate their communications from
employer discipline.” Garcetti v. Ceballos, 547 U.S. 410, 421 (2006). Therefore,
our first question is to determine if Rodriguez spoke as a citizen or if she spoke
as an employee in making her statement to the court’s human resources
department. “The Supreme Court has declined to articulate a comprehensive
framework for determining whether and when a public employee is speaking
as a citizen,” leaving the lower courts to conduct a fact-intensive “practical”
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analysis.   Hardesty v. Cochran, 621 F. App’x 771, 776 (5th Cir. 2015)
(unpublished) (citing Garcetti, 547 U.S. at 424; Gibson v. Kilpatrick, 773 F.3d
661, 667 (5th Cir. 2014)). The Court has stated, however, 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 v. Franks, 134 S. Ct. 2369, 2379 (2014). We focus on the role of
the speaker, rather than the content of the speech. Anderson v. Valdez, No.
15-40836, ---F.3d---, 2016 WL 7667301, at *6 n.32 (5th Cir. Nov. 9, 2016)
(quoting Williams v. Dall. Indep. Sch. Dist., 480 F.3d 689, 692–93 (5th Cir.
2007)).
      We have recently explained that an “employee’s speech is made pursuant
to his official duties when that speech is ‘made in the course of performing his
employment’ whether or not that speech was specifically ‘demanded of [the
employee].’” Valdez, 2016 WL 7667301, at *8 (quoting Williams, 480 F.3d at
694). In Valdez, we consulted state agency law to aid in our evaluation of this
question. Id. at *8–10. Specifically, we asked whether the employee was
subject to the employer’s control and whether the employee’s course of conduct
was “intended . . . to serve any purpose of the employer.”         Id. (quoting
RESTATEMENT (THIRD) OF AGENCY § 7.07). We have also determined
that a public employee acts as an employee, rather than a citizen, when he
decides to raise complaints about his job duties up the “chain of command.”
Davis v. McKinney, 518 F.3d 304, 313 (5th Cir. 2008) (collecting cases).
Furthermore, we have held that an employee’s decision to take “his . . .
concerns to persons outside of the work place” usually supports a decision that
the employee was acting as a citizen, id., and we have noted whether the
employee was asked or required to engage in the relevant speech, or if he did
so “on his own initiative,” Valdez, 2016 WL 7667301, at *10.
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       Here, Rodriguez presented uncontroverted evidence that her duty with
the court was administrative. In her own words, her duties were to “work on
presentations[,] . . . prepare interview packets, schedule interviews . . . , type
up correspondence . . . ma[k]e travel arrangements, ke[ep] her [supervisor’s]
calendar, [and to] process[] invoices[] [and] payroll.” Rodriguez testified that
she had no supervisory responsibilities and that she prepared her statement
to human resources voluntarily. But Rodriguez also testified that her superior,
Monica Lewis, asked Rodriguez to send a statement to human resources about
the incident.       Furthermore, the director of the City’s human resources
department testified that employees are expected “to cooperate with any
investigation, including giving a witness statement.”
       Viewing Rodriguez’s testimony in the light most favorable to the verdict
and comparing these facts to our past decisions, we conclude that Rodriguez’s
statement was made in the ordinary course of her employment. We have
previously stated that “assisting in an employer’s investigation into workplace
theft is ordinarily within the scope of an employee’s job duties.” Caleb v. Grier,
598 F. App’x 227, 236 (5th Cir. 2015)(unpublished), 1 cert. denied, 135 S. Ct.
2813 (2015).      We see no reason why assisting in an investigation into a
workplace confrontation should be treated differently. Furthermore, under
agency law principles, the statement appears to have been intended for the
benefit of the employer. In fact, although Rodriguez considered her action to
be voluntary, she admitted that assistant director Monica Lewis, who had
authority to assign Rodriguez work, requested that she make the statement to
human resources. Rodriguez thus did not act solely on her own initiative but
did so pursuant to a supervisor’s directive. See Williams, 480 F.3d at 693–94

       1 Although Caleb is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
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(concluding that the plaintiff acted as an employee despite the fact that he was
not required to write a memoranda complaining about funding). Furthermore,
Rodriguez’s raising of concerns about an incident that she witnessed at work
with her employer’s human resources department, rather than to the public,
represents a chain-of-command complaint that is ordinarily within the scope
of every public employee’s duty. See Davis, 518 F.3d at 313; cf. Howell v. Town
of Ball, 827 F.3d 515, 524 (5th Cir. 2016) (“Howell’s statements to the FBI were
made outside the normal chain of command and without the knowledge or
permission of anyone else in the police department.”), cert. denied sub nom.
Town of Ball, La. v. Howell (U.S. Jan. 17, 2017). On these facts, we conclude
as a matter of law that Rodriguez acted as an employee.
      Accordingly, we REVERSE the district court’s denial of Rodriguez’s
motion for judgment as a matter of law. Because there is no remaining dispute,
we also RENDER judgment in favor of the City.




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