     Case: 16-41521      Document: 00514386020         Page: 1    Date Filed: 03/14/2018




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

                                      No. 16-41521
                                                                                Fifth Circuit

                                                                              FILED
                                                                        March 14, 2018

DAWN POLK,                                                               Lyle W. Cayce
                                                                              Clerk
              Plaintiff - Appellee

v.

MICHAEL SINEGAL,

              Defendant - Appellant


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 1:15-CV-153


Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.
PER CURIAM:*
       This case occasions review of the district court’s denial of a motion for
summary judgment predicated on qualified immunity. Finding no error in the
district court’s analysis, we AFFIRM.
                                   BACKGROUND
       In 2009, Michael Sinegal, a county commissioner in Jefferson County,
Texas, hired Dawn Polk as an administrative assistant.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                No. 16-41521
      Three years later, in 2012, Polk informed Sinegal that she planned to
run in the Democratic Primary for Justice of the Peace. One of Polk’s opponents
was the incumbent, Tom Gillam III. Sinegal initially told Polk he thought her
campaign was a good idea. During a subsequent meeting in September 2013,
however, Sinegal acted as though Polk had failed to inform him of her
candidacy, complaining, “you don’t know what type of position you’re putting
me in because this man Gillam is going around telling everybody that I set you
up to run against him.”
      Polk campaigned on the basis of her own integrity and Gillam’s lack
thereof. She ultimately lost the primary and returned to work for Sinegal.
Upon her return, Sinegal called Polk into his office, informing her that he had
spoken with Human Resources and that Polk’s employment was “not working
out.” Sinegal said that he had informed Human Resources that Polk was not
typing memoranda or giving messages. In fact, Sinegal alleged that Polk was
“not doing anything.” Polk asked Sinegal why he would lie to Human Resources
and whether he was firing her for campaigning against Gillam. Sinegal
immediately called another employee into the room to witness the meeting and
told Polk she had two days to find another job.
      In March 2015, Polk sued Sinegal and Jefferson County under 42 U.S.C.
§ 1983 in state court. The defendants subsequently removed the case to federal
court. Polk’s amended complaint asserts that Sinegal and Jefferson County
violated the First Amendment by retaliating against her for speaking out
against Gillam. The defendants moved for summary judgment, arguing that
the County was not liable under Monell and that Sinegal was entitled to
qualified immunity. The district court granted summary judgment as to the
County, but found that Polk had raised a genuine issue of material fact as to
Sinegal’s qualified immunity. Sinegal timely appealed that decision.


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                                  No. 16-41521
                          STANDARD OF REVIEW
      “While not a final decision, ‘the denial of a motion for summary judgment
based upon qualified immunity is a collateral order capable of immediate
review.’” Heaney v. Roberts, 846 F.3d 795, 800 (5th Cir. 2017) (quoting Kinney
v. Weaver, 367 F.3d 337, 346 (5th Cir. 2004) (en banc)). However, in doing so,
we have limited appellate jurisdiction.
      A district court denying an official’s motion for summary judgment
predicated on qualified immunity “can be thought of as making two distinct
determinations.” Kinney, 367 F.3d at 346. First, the district court determines
whether “a certain course of conduct would, as a matter of law, be objectively
unreasonable in light of clearly established law.” Id. Second, the district court
determines whether “a genuine issue of fact exists regarding whether the
defendant(s) did, in fact, engage in such conduct.” Id. This court only has
jurisdiction to review the first type of determination. Id. at 346-47.
      Because we have no jurisdiction to consider the correctness of the
plaintiff’s version of the facts, the appealing defendant must “be prepared to
concede the best view of the facts to the plaintiff and discuss only the legal
issues raised by the appeal.” Winfrey v. Pikett, 872 F.3d 640, 644 (5th Cir. 2017)
(citations omitted). So limited, this court reviews the district court’s analysis
de novo. Id.
                                 DISCUSSION
      Sinegal argues that Polk’s allegations are, as a matter of law,
insufficient. In addition, Sinegal asserts that the district court defined “clearly
established law” at too high a level of generality. Neither argument has merit.
      To establish a claim of First Amendment retaliation, Polk must show
that: (1) she “suffered an adverse employment decision;” (2) her “speech
involved a matter of public concern;” (3) her interest in speaking “outweighed
the defendant’s interest in promoting efficiency;” and (4) her speech was a
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                                       No. 16-41521
“substantial or motivating factor” behind the adverse employment decision.
See James v. Texas Collin Cnty., 535 F.3d 365, 375-76 (5th Cir. 2008).
       Only the fourth element is in dispute. 1 As the district court noted, “Polk
alleges that her decision to run for office caused altercations between Sinegal
and Gillam, which ultimately resulted in Sinegal’s decision to terminate Polk’s
employment.” The court found that Polk had raised a genuine issue of fact for
those allegations by proffering evidence that Sinegal used the allegations of
poor work performance “as excuses to mask” his true motive in firing Polk. The
only question for our consideration is whether such conduct, if proven, would
be objectively unreasonable in light of clearly established law. See Kinney,
367 F.3d at 346. We agree with the district court that it would.
       “This court has been unequivocal in its recognition of a First Amendment
interest in candidacy.” Phillips v. City of Dallas, 781 F.3d 772, 778 (5th Cir.
2015). We have recognized that right in the public employment context since
at least 1992. See Click v. Copeland, 970 F.2d 106, 112 (5th Cir. 1992).
Applying that clearly established precedent to this case, we agree with the
district court that “if Polk’s version [of the facts] is accurate, and Sinegal is
using [poor work evaluations] as excuses to mask his unconstitutional conduct,
then qualified immunity is unavailable.”
                                     CONCLUSION
       There is no question that Sinegal disputes that Polk’s candidacy was the
motivating factor in terminating her employment. However, we are limited to




1 Sinegal disputes the district court’s conclusion that he was not contesting the third element
of Polk’s retaliation claim. As evidence that he disputed this element, Sinegal states that his
summary judgment motion explained that he fired Polk because she was “inefficient.” This
argument misunderstands the third element, which involves interest balancing under
Pickering v. Board of Education, 391 U.S. 563 (1968). Sinegal never argues that an interest
in governmental efficiency outweighed Polk’s interest in engaging in political speech; indeed,
he argues that Polk’s termination was unrelated to her political speech.
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determining only whether the conduct identified by the district court would, as
a matter of law, be objectively unreasonable in light of clearly established law,
if true. Finding that it would, we AFFIRM on that limited ground.




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