     Case: 18-60401   Document: 00515049917        Page: 1   Date Filed: 07/25/2019




                         REVISED July 25, 2019

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

                                                                           FILED
                                    No. 18-60401                       July 18, 2019
                                                                      Lyle W. Cayce
LAMON K. GRIGGS,                                                           Clerk


             Plaintiff - Appellee

v.

CHICKASAW COUNTY, MISSISSIPPI,

             Defendant - Appellant




                Appeal from the United States District Court
                  for the Northern District of Mississippi


Before CLEMENT, GRAVES, and OLDHAM, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
      Lamon Griggs served as Chickasaw County’s Solid Waste Enforcement
Officer for fifteen years before the County’s Board of Supervisors unanimously
eliminated his position in 2015. After his position was eliminated, Griggs
brought a First Amendment retaliation claim under 42 U.S.C. § 1983 against
Chickasaw County. Griggs alleged that his position was eliminated because
he was running for sheriff as an Independent and against the Board’s preferred
candidate, a Democrat. The matter went to trial, and a jury found for Griggs.
      The County now appeals. We AFFIRM.
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                                 No. 18-60401
                                BACKGROUND
      Griggs worked as Chickasaw County’s Solid Waste Enforcement Officer
for fifteen years without receiving any complaints about his job performance.
His duties related to illegal dumping of waste, including “investigations,
searches,” “identify[ing] the violator,” ensuring proper cleanup, and “going to
court.” Griggs applied for grants each year to fund his work, and grants from
the Mississippi Department of Environmental Quality (“MDEQ”) supported at
least half of Griggs’ salary.
      In 2015, Griggs decided to run for Sheriff of Chickasaw County as an
Independent. In July 2015, Griggs spoke with Anderson McFarland, a member
of Chickasaw’s five-member Board of Supervisors, about his campaign.
Supervisor McFarland asked if Griggs was “going to pull out” of the sheriff
race. Griggs answered no. Supervisor McFarland responded that Supervisor
Jerry Hall and “them” wanted Griggs to withdraw from the race.
      In 2015, the County’s Chancery Clerk notified the Board that the solid
waste fund was in the red and that the County had not received funding from
a grant that Griggs should have submitted in 2014. In August 2015, the
Chancery Clerk shared with Griggs that the County had not received the usual
grant money. While MDEQ did not have a grant application on file from the
County, Griggs claimed to have submitted the grant application and did not
know why MDEQ did not have it.
      On September 22, 2015, the Chancery Clerk asked Griggs to attend the
Board meeting to explain to the Board what happened to the grant. At the
meeting, Supervisor Hall asked the Chancery Clerk whether the County had
received its grant money, and the clerk replied no. Supervisor Hall then
responded, “I say we go ahead and just eliminate this program right now.” The
clerk advised the Board that the County had another grant and suggested that
the County use that grant to fund Griggs’ position through the start of the year.
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                                     No. 18-60401
However, Supervisor Russell Brooks rejected the suggestion because the
County did not have the “money in hand.” Supervisor Hall then chimed in and
also rejected the suggestion.
       The Board unanimously voted to eliminate Griggs’ position of Solid
Waste Enforcement Officer, and the position was reported as being eliminated
“due to lack of funds.” Following the elimination of Griggs’ position, the Board
moved Griggs into a Bailiff position.
       At that same meeting, Supervisor Brooks asked Griggs if he knew “what
the Hatch Act is.” 1
      About a week later, Griggs again spoke with Supervisor McFarland at a
restaurant. Supervisor McFarland told Griggs that his termination “looked
like political favoritism and that [the Board] was going to go back and revisit”
the issue. Griggs had “high hopes that [the Board] would do that, but [he] never
heard another thing” about it. The Board did not reconsider its decision.
      Griggs did not appeal the Board’s decision to the County’s circuit court.
Also, he applied to the Mississippi Employment Security Commission
(“MESC”) for unemployment benefits. In Griggs’ unemployment application,
he responded that he was “laid off.”
       Subsequently, Griggs sued the County and alleged that the County
eliminated the Solid Waste Enforcement Officer position because of
constitutionally protected political activity (i.e., running for sheriff). The
County moved for summary judgment, which the district court denied. The
case proceeded to trial.




      1  The Hatch Act prohibited federal employees from taking an active role in political
campaigns and applied, until recently, to state and local employees whose positions were
federally funded. Phillips v. City of Dall., 781 F.3d 772, 776 & n.4 (5th Cir. 2015).
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                                    No. 18-60401
      At trial, there was evidence that:
            1. During a casual conversation about politics at a McDonald’s,
              Supervisor McFarland told Griggs that Supervisor Hall and
              others wanted Griggs to drop out of the race.
            2. During the termination meeting, Supervisor Brooks asked
              Griggs whether he knew “what the Hatch Act is.”
            3. After Griggs’ position was eliminated, Supervisor McFarland
              said it “looked like political favoritism.”
            4. Supervisor Hall and Supervisor Brooks, “who had indicated a
              desire to have Griggs out of the race for sheriff,” were most active
              during the termination hearing.
      At the end of Griggs’ case-in-chief, the County moved for judgment as a
matter of law. The motion was denied. The trial proceeded, and the jury
ultimately returned a verdict in Griggs’ favor. The jury found that Griggs had
“prove[n] by a preponderance of the evidence that his running for Sheriff was
a motivating factor in his losing his position as Solid Waste Enforcement
Officer.”    The jury also found that the County had failed to prove “by a
preponderance of the evidence that it would have eliminated the position . . .
regardless of whether or not [Griggs] ran for Sheriff.”
      After trial, the County renewed its motion for judgment as a matter of
law and for a new trial, which the district court denied.
      The County now appeals the district court’s denial of its motions for
summary judgment, for judgment as a matter of law, and for a new trial.
                            STANDARD OF REVIEW
      “We review de novo the district court’s denial of a motion for judgment
as a matter of law, applying the same standards as the district court.”
Encompass Office Sols., Inc. v. Louisiana Health Serv. & Indem. Co., 919 F.3d
266, 273 (5th Cir. 2019) (quotation omitted). “The jury’s verdict can only be
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                                  No. 18-60401
overturned if there is no legally sufficient evidentiary basis for a reasonable
jury to find as the jury did.” Miller v. Raytheon Co., 716 F.3d 138, 144 (5th Cir.
2013) (quotation omitted). “As a consequence, [this court] ‘must disregard all
evidence favorable to the moving party that the jury is not required to believe.’”
Robinson v. Jackson State Univ., 714 F. App’x 354, 358 (5th Cir. 2017) (per
curiam) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151
(2000)). The court may only credit “evidence supporting the moving party that
is uncontradicted and unimpeached, at least to the extent that that evidence
comes from disinterested witnesses.” Id. (quotation omitted). “The jury’s
verdict should be affirmed unless the facts and inferences point so strongly and
overwhelmingly in the movant’s favor that reasonable jurors could not reach a
contrary conclusion.” Alonso v. Westcoast Corp., 920 F.3d 878, 882 (5th Cir.
2019) (quotation omitted).
      “We review the district court’s grant or denial of a new trial for abuse of
discretion.” Encompass Office Sols., Inc, 919 F.3d at 273 (quotation omitted).
                                 DISCUSSION
      The County argues that Griggs’ claim is not permitted as it was:
(1) barred by the Rooker-Feldman doctrine; (2) judicially estopped because
Griggs selected that he was “laid off” in his application for unemployment
benefits; and (3) precluded because Griggs failed to appeal the Board’s decision
under Miss. Code. Ann. § 11-51-75. The County further argues that Griggs’
position was a policymaking position that insulates it from First Amendment
liability, and there was insufficient evidence at trial that a majority of the
Board was motivated by Griggs’ run for sheriff in eliminating his position.
      We find no reversible error.




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                                 No. 18-60401
I.    Griggs’ Claim Is Permitted.
      A.    The Rooker-Feldman doctrine is inapplicable.
      The County argues that Griggs’ claim is barred by the Rooker-Feldman
doctrine and that the district court, therefore, lacked subject-matter
jurisdiction over the claim. According to the County, the Board’s decision was
a state judgment, and the Rooker-Feldman doctrine forecloses Griggs’ claim.
      “Because the Rooker–Feldman doctrine is jurisdictional, we must
address this issue first.” Truong v. Bank of Am., N.A., 717 F.3d 377, 381–82
(5th Cir. 2013). The doctrine “directs that federal district courts lack
jurisdiction to entertain collateral attacks on state court judgments.” Kam v.
Dall. Cty., 756 F. App’x 455, 455 (5th Cir. 2019) (per curiam) (quotation
omitted) (emphasis added); see also Nat’l R.R. Passenger Corp. v. Pa. Pub. Util.
Comm’n, 342 F.3d 242, 257 (3d Cir. 2003) (“The Supreme Court has made clear,
however, that the Rooker-Feldman doctrine only applies to state judicial
proceedings, not administrative or legislative proceedings.”).
      Here, Griggs challenges the decision of the Board, not the decision of a
state court. Accordingly, the Rooker-Feldman does not apply, and the district
court did not lack jurisdiction over Griggs’ First Amendment claim.
      B.    Griggs’ claim is not judicially estopped based on his
            response in his unemployment application.
      The County argues that Griggs is judicially estopped from claiming that
his position was eliminated in violation of his First Amendment rights because
he selected that he was “laid off” on his unemployment benefits application.
      Judicial estoppel is appropriate when: “(1) a party has asserted a position
that is plainly inconsistent with a previously asserted position, (2) the earlier
position was accepted by the court, and (3) the party did not act inadvertently.”
Dacar v. Saybolt, L.P., 914 F.3d 917, 927 (5th Cir. 2018), as amended on denial
of reh’g and reh’g en banc (Feb. 1, 2019).
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                                    No. 18-60401
       At a minimum, the County has failed to demonstrate that Griggs’ claim
that he was terminated in violation of his First Amendment right is “plainly
inconsistent” from his assertion in his unemployment application that he was
“laid off.” Griggs’ assertion in his application to the MESC simply reiterates
the reason the County provided for his termination: “lack of funds.” As the
district court noted, “MESC did not inquire into whether [Griggs] engaged in
protected speech,” it only inquired as to whether he was entitled to
unemployment benefits. The County’s argument fails.
       C.    Griggs’ failure to appeal the Board’s decision in state court
             does not preclude his First Amendment claim under § 1983.
       The County argues that Griggs is precluded from bringing his claim
because he failed to appeal the Board’s decision to the County’s circuit court
under Miss. Code § 11-51-75. 2 However, this court has already held that a
plaintiff’s failure to use § 11-51-75 does not prevent a federal court from
hearing a federal claim brought under § 1983. See Nat’l Solid Waste Mgmt.
Ass’n v. Pine Belt Reg’l Solid Waste Mgmt. Auth., 389 F.3d 491, 496 n.10 (5th
Cir. 2004) (quotation omitted) (“When federal claims are premised on 42 U.S.C.
§ 1983 . . . we have not required exhaustion of state judicial or administrative
remedies.”). The County’s argument fails.
II.    Griggs’ Position Was Not A Policymaking Position.
        “It is well settled that the Constitution prohibits a government employer
from discharging or demoting an employee because the employee supports a
particular political candidate . . . .” Moss v. Harris Cty. Constable Precinct One,
851 F.3d 413, 421 (5th Cir. 2017) (quotation omitted). “To establish a § 1983
claim for employment retaliation related to speech, a plaintiff-employee must


       2  Under § 11-51-75, a person aggrieved by a decision of the county’s board of
supervisors may appeal the decision to the county’s circuit court within ten days of the
decision.
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show: (1) he suffered an adverse employment action; (2) he spoke as a citizen
on a matter of public concern; (3) his 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.” Id. at 420–21 (quoting
Anderson v. Valdez, 845 F.3d 580, 590 (5th Cir. 2016)). Only the third prong
is at issue in this matter: the balance between the government’s interests and
Griggs’ interests.
      This “case-by-case balancing test” compares “an employee’s interest in
commenting upon matters of public concern” and “the interest of the State in
promoting the efficient delivery of public services.” Wiggins v. Lowndes Cty.,
Miss., 363 F.3d 387, 390 (5th Cir. 2004). “[The] key factor in the balancing test
is whether political allegiance is an appropriate requirement for the effective
performance of the public office involved.” Id. (quotation omitted). This court
“more readily find[s] that the government’s interests outweigh the employee’s
interests where the employee is a policymaker” for purposes of the First
Amendment. Id.
      “A policymaker is an employee whose responsibilities require more than
simple ministerial competence, whose decisions create or implement policy,
and whose discretion in performing duties or in selecting duties to perform is
not severely limited by statute, regulation, or policy determinations made by
supervisors.”   Id.    “[C]onsideration should also be given to whether the
employee acts as an adviser or formulates plans for the implementation of
broad goals.” Id. (quotation omitted).
      Referencing a grant application signed by Griggs, the County argues that
Griggs’ position, Solid Waste Enforcement Officer, was a policymaking role
because:
                 1. Griggs “traveled and monitored 571 miles of county roads
                      looking for illegal dumping”;
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                                       No. 18-60401
                   2. Griggs “determined who to ticket for these dumping
                        activities”;
                   3. Griggs      “receive[d]    calls   from      citizens   who   ma[d]e
                        complaints which he investigate[d]”;
                   4. Griggs worked “8-10 hours per day” and was “on-call 7 days
                        a week and 24 hours a day”; and,
                   5. He “was solely responsible for applying for the grant to
                        fund his program and salary and thus, he set the budget
                        for the program.”
        Even considering these assertions, the County fails to demonstrate that
Griggs occupied a policymaking role. There is no evidence that Griggs created
or implemented policy or that he had discretion in performing his duties that
was not severely limited by a supervisor. As the district court noted, Griggs
was required to report to the road manager, and besides applying for grants,
he was not involved in the funding process. The County’s argument that
Griggs occupied a policymaking position fails.
III.    The Jury’s Verdict Was Supported By Sufficient Evidence.
        The County argues that Griggs failed to prove that a majority of the
Board eliminated his position because he ran for sheriff. 3
        Again, the jury’s verdict can only be overturned “if there is no legally
sufficient evidentiary basis for a reasonable jury to find as the jury did.” Miller,
716 F.3d at 144.
        A municipality faces liability under § 1983 only if “action pursuant to
official municipal policy of some nature caused a constitutional tort.” Monell v.



        Griggs argues that the County forfeited the argument by raising it for the first time
        3

on appeal. Although the County could have raised its argument more clearly, the argument
was “sufficient to permit the district court to rule on the essential argument [the County]
advances on appeal.” In re Liljeberg Enters., Inc., 304 F.3d 410, 427 n.29 (5th Cir. 2002).
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Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978) (rejecting
respondeat superior liability). Thus, “municipal liability under section 1983
requires proof of three elements: a policymaker; an official policy; and a
violation of constitutional rights whose ‘moving force’ is the policy or custom.”
Piotrowski v. City of Houston, 237 F.3d 567, 578 (5th Cir. 2001). When the
municipality’s policymaker is a multimember board, “the separate actions of
individual members of the Board are not sufficient to bind the Board as an
entity.” Burns v. Harris Cty. Bail Bond Bd., 139 F.3d 513, 521 (5th Cir. 1998).
      The County does not dispute that the Board was a policymaker, or that
eliminating Griggs’ position was an official policy. Here, the only issue is
whether the “moving force” behind eliminating Griggs’ position was Griggs’
run for sheriff. See Lozman v. City of Riviera Beach, 138 S. Ct. 1945, 1954
(2018) (explaining a retaliation claim against a municipality requires the
plaintiff to “prove the existence and enforcement of an official policy motivated
by retaliation”).
      While there was evidence of retaliatory animus by individual board
members, “the dispositive question is simply whether retaliatory animus is
also chargeable to the Board itself.” Howell v. Town of Ball, 827 F.3d 515, 527
(5th Cir. 2016). Where the evidence relates to individual members of a board,
other circuits require proof that a majority of the multimember body had the
requisite motive (“the majority-motivation approach”) to impute the retaliatory
animus to the board. See, e.g., Campbell v. Rainbow City, Ala., 434 F.3d 1306
(11th Cir. 2006); LaVerdure v. Cty. of Montgomery, 324 F.3d 123, 125 (3d Cir.
2003); Kawaoka v. City of Arroyo Grande, 17 F.3d 1227, 1239 (9th Cir. 1994).
      We agree that Griggs was required to show that a majority of the Board
had retaliatory animus. Even so, there is a legally sufficient basis for the jury’s
verdict. Drawing all reasonable inferences in Griggs’ favor, which we must do,


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                                 No. 18-60401
there is evidence that at least three of the five board members had retaliatory
motive. This evidence is legally sufficient to support the jury’s verdict.
                                CONCLUSION
      For the foregoing reasons, we AFFIRM the jury’s verdict.




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