     Case: 13-41344   Document: 00512866268        Page: 1   Date Filed: 12/11/2014




                REVISED, December 11, 2014
        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT



                                    No. 13-41344                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
THOMAS BURNSIDE,                                                  December 9, 2014
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

JIM KAELIN, Individually,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before JOLLY, HIGGINBOTHAM and OWEN, Circuit Judges.
E. GRADY JOLLY, Circuit Judge:
      This interlocutory appeal arises from the denial of qualified immunity at
the motion-to-dismiss stage. Plaintiff Burnside, a deputy sheriff, filed this
§ 1983 action alleging that, because he did not support defendant-Sheriff
Kaelin’s re-election bid, he was punitively transferred, and later fired, for
exercising his First-Amendment rights to engage in free speech and
association. Sheriff Kaelin appeals the district court’s denial of his motion to
dismiss Burnside’s complaint based on qualified immunity. We AFFIRM in
part, REVERSE in part, and REMAND.
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                                  No. 13-41344
                               I. Background

        Because this appeal arises from the denial of a motion to dismiss, we
review the alleged facts in the light most favorable to plaintiff Burnside. Cf.
Johnson v. Jones, 515 U.S. 304 (1995) (noting the limited scope of our appellate
jurisdiction over an interlocutory appeal from the denial of qualified
immunity).
        Plaintiff Burnside worked as a sergeant for the Nueces County Sheriff’s
Department (“the Department”). For many years, Burnside was assigned to
the Department’s patrol division. Burnside also served as chairman of a law
enforcement political action committee (“PAC”).      Burnside maintained his
association with the PAC and the campaign separate and distinct from his
employment with the Department.
        In January 2012, Sheriff Kaelin was up for re-election in a contested
race.   Sometime in January 2012, defendant Kaelin approached Burnside
while Burnside was on duty and told him that the PAC should support Kaelin’s
re-election bid. Burnside said that he would not treat Kaelin differently from
any other candidate and that the PAC’s members would vote on the
endorsement free from outside pressure. A few days later, Sheriff Kaelin told
Burnside that Kaelin would move him to jail duty if the PAC did not support
Kaelin’s candidacy.
        Burnside personally supported Kaelin’s opponent, and Kaelin knew this.
Moreover, the PAC did not support or endorse Kaelin, a fact that was common
knowledge by January 12, 2012.
        Three weeks after the PAC failed to endorse Kaelin, Kaelin transferred
Burnside from the Department’s patrol division to the jail. The jail assignment
was “an extremely less desirable position” than his patrol position. Sheriff



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                                       No. 13-41344
Kaelin and all those in Burnside’s position understood Burnside’s transfer to
jail duty to be a demotion rather than a reassignment.
       Burnside continued to work at the jail for more than a year. In March
2013, his employment was terminated because of the dissemination of a
recording containing a threat from Sheriff Kaelin against another officer.
       Based on these facts, Burnside filed this § 1983 action against the
Sheriff’s Department and Sheriff Kaelin (in his individual capacity).                    The
complaint alleges that the defendants (the Sheriff and Sheriff’s Department)
violated Burnside’s First-Amendment rights by retaliating against him after
he exercised his speech and association rights.               Without answering, both
defendants moved to dismiss the complaint pursuant to Rule 12(b)(6), with
Kaelin asserting the defense of qualified immunity. The magistrate judge
recommended denying those motions. Kaelin objected on several grounds. The
district court overruled those objections, then summarily adopted the
magistrate judge’s recommendation.
       Kaelin brings this interlocutory appeal challenging the denial of
qualified immunity. 1

                                II. Legal Principles

       Burnside bases his § 1983 claim on Kaelin’s alleged violation of his First-
Amendment speech and association rights. To establish a First-Amendment,
free-speech retaliation claim under § 1983, a public employee must show that
(1) she suffered an adverse employment action; (2) her speech involved a
matter of public concern; (3) her interest in commenting on matters of public


       1We have appellate jurisdiction over this interlocutory appeal “only to the extent that
[the denial of qualified immunity] turns on an issue of law.” Cf. Juarez v. Aguilar, 666 F.3d
325, 331 (5th Cir. 2011) (stating rule in summary judgment context). We have no jurisdiction
over arguments unrelated to the denial of qualified immunity or over factual disputes, so we
do not address any such arguments from Kaelin’s brief on appeal.
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                                  No. 13-41344
concern outweighed the defendant’s interest in promoting workplace efficiency;
and (4) her speech was a substantial or motivating factor in the defendant’s
adverse employment action. DePree v. Saunders, 588 F.3d 282, 286–87 (5th
Cir. 2009); Click v. Copeland, 970 F.2d 106, 113 (5th Cir. 1992); see also West
v. Atkins, 487 U.S. 42, 48 (1988) (stating that a plaintiff must also show that
the alleged constitutional deprivation was committed by a person acting under
color of law). A First-Amendment, “association” claim has similar elements
but requires “engagement in a constitutionally protected activity” (rather than
speech) and omits the second element (i.e., that the protected act involve a
matter of public concern). See Boddie v. City of Columbus, Miss., 989 F.2d 745,
747 (5th Cir. 1993).
      Sheriff Kaelin asserts that he is entitled to qualified immunity. The
basic steps of the qualified-immunity inquiry are well-known:          a plaintiff
seeking to defeat qualified immunity must show that (1) the official violated a
statutory or constitutional right and (2) the right was clearly established at the
time of the challenged conduct. Morgan v. Swanson, 659 F.3d 359, 370 (5th
Cir. 2011) (en banc); Kovacic v. Villarreal, 628 F.3d 209, 211 (5th Cir. 2010)
(“Once a defendant invokes qualified immunity, the burden shifts to the
plaintiff to show that the defense is not available.”).

                              III. Discussion

      Burnside’s complaint alleges First-Amendment violations for two
separate events:     (1) his transfer in 2012 and (2) the termination of his
employment in 2013. Taking the alleged facts in plaintiff Burnside’s favor, we
hold that he has alleged a § 1983 claim concerning his 2012 transfer, but we
further hold that he has failed to state a constitutional violation with respect
to his 2013 termination.


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                                  No. 13-41344
A. Transfer

      With regard to Burnside’s retaliatory transfer claim, Kaelin argues that
the complaint fails to allege a First-Amendment violation because (1) the
transfer was not an adverse employment action; (2) there is no causal link
between Burnside’s protected acts and the transfer; and (3) the complaint does
not provide enough facts to perform the Pickering-balancing test. We address
each argument in turn.
      First, Kaelin argues that Burnside’s transfer from the patrol division to
the jail was not sufficiently “adverse.” This Circuit has clearly established that
that a retaliatory, demotion-like transfer may constitute an adverse
employment action under 42 U.S.C. § 1983. See, e.g., Serna v. City of San
Antonio, 244 F.3d 479, 483 (5th Cir. 2001); Hunt v. Rapides Healthcare Sys.,
LLC, 277 F.3d 757, 770 (5th Cir. 2001) (“A job transfer may qualify as an
‘adverse employment action’ for the purpose of a First Amendment retaliation
claim under 42 U.S.C. § 1983, if the change makes the job ‘objectively worse.’ ”);
Breaux v. City of Garland, 205 F.3d 150, 157 (5th Cir. 2000) (“Transfers can
constitute adverse employment actions if they are sufficiently punitive . . . or
if the new job is markedly less prestigious and less interesting than the old
one.” (citations omitted)); Click, 970 F.2d at 110–11. A transfer can be adverse
within the meaning of § 1983 “even without an accompanying cut in pay or
other tangible benefits” if the transfer is objectively “equivalent to” one of the
commonly    accepted    adverse   actions   (e.g.,   discharges,   demotions,   or
reprimands). Serna, 244 F.3d at 483 (summarizing the then-current state of
the law regarding transfers as “adverse employment actions”). For example,
where two plaintiffs ran for sheriff against the defendant-incumbent, failed to
unseat the incumbent sheriff, and were subsequently transferred by that
sheriff from law enforcement positions to jail guards, we held that the jail-duty

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                                 No. 13-41344
transfers were “demotion-like” and, thus, adverse employment actions because
the new jobs were less interesting, less prestigious, and provide less
opportunity for promotion. See Click, 970 F.2d at 109–11.
      Here, Sheriff Kaelin took Burnside off the streets and placed him in the
jail. The complaint alleges that the transfer was “typically considered by all in
[Burnside’s] position to be . . . a demotion.” Burnside alleged that Sheriff
Kaelin himself viewed the transfer as a demotion. One reasonable inference is
that Kaelin initiated the transfer to punish Burnside for not supporting Kaelin
in the 2012 election. This inference is precisely the one we drew in Click, where
we found a transfer from law enforcement to jail guard was objectively
“demotion-like.”     970 F.2d at 109–11.     Given the facts and reasonable
inferences drawn from Burnside’s complaint, his transfer alleges an adverse
employment action under 42 U.S.C. § 1983.
      Next, Kaelin argues that the complaint does not allege sufficiently a
causal link between Burnside’s protected acts and the transfer. The alleged
fact of the causal link is readily apparent for a fact-finder to see. Viewed in
Burnside’s favor, the complaint alleges that twice in January 2012, Kaelin told
Burnside that the PAC should support Kaelin’s re-election bid. During the
second encounter, Kaelin threatened to transfer Burnside to jail duty if the
PAC did not support Kaelin’s candidacy. By mid-January, according to the
allegations, it was common knowledge that the PAC did not support or endorse
Kaelin, and Kaelin knew that Burnside personally supported Kaelin’s
opponent. Within three weeks, Kaelin followed through with his threat and
transferred Burnside to the jail. These allegations are sufficient to allow a
plausible inference that Kaelin knew of the non-endorsement before he
initiated Burnside’s transfer and that the non-endorsement caused the jail-
duty transfer. See Beattie v. Madison Cnty. Sch. Dist., 254 F.3d 595, 601 (5th


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                                      No. 13-41344
Cir. 2001) (stating that the protected conduct need only be a motivating factor
in the adverse employment action).
       Finally, Kaelin argues that the complaint does not provide sufficient
facts to perform the Pickering-balancing test. 2 In particular, Kaelin argues
that the complaint does not provide facts sufficient to determine whether
Burnside’s membership and leadership role in the PAC outweighed the
Department’s interest in workplace efficiency. 3 In stating a prima facie case
at the motion-to-dismiss stage of a case, there is a rebuttable presumption that
no balancing is required to state a claim. See Kennedy v. Tangipahoa Parish
Library Bd. of Control, 224 F.3d 359, 366 n.9 (5th Cir. 2000) (stating that the
requirement to balance an employee’s interest in his First-Amendment speech
against the employer’s interest in promoting workplace efficiency “implicates
only the summary judgment [analysis], not [a Rule 12(b)(6)] analysis”),
abrogated in part by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). The
rebuttable presumption applies because reasonable inferences drawn from a
complaint, obviously drafted by the aggrieved employee, will generally lead to
a plausible conclusion that the employee’s interest in commenting on matters
of public concern outweighs the employer’s interest in workplace efficiency.
The presumption also adheres because a plaintiff-employee is not in a position
to plead defensive reasons for its employment decisions.                  Moreover, this
presumption does not prejudice the employer because it may quickly overcome
the presumption by invoking the procedure for resolving qualified-immunity
disputes at the motion-to-dismiss stage. See Schultea v. Wood, 47 F.3d 1427



       2 Pickering v. Board of Educ., 391 U.S. 563 (1968). This is sometimes referred to as
Pickering-Connick balancing or McBee-Pickering-Connick balancing. See, e.g., Click, 970
F.2d at 112.
       3 This argument addresses the third prong of Burnside’s free-speech retaliation claim;

it does not affect Burnside’s association claim because that claim has no balancing-test
requirement.
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                                 No. 13-41344
(5th Cir. 1995) (en banc) (setting forth a procedure—through the use of a Rule
7 reply—to resolve factual disputes in cases where qualified immunity applies).
Here, Kaelin failed to invoke the Shultea procedure, and nothing in Burnside’s
complaint indicates that Burnside’s interest in commenting on the election was
surpassed by Kaelin’s interest in workplace efficiency. Thus, the complaint’s
allegations are sufficient to survive Kaelin’s motion to dismiss.
      Given the facts and reasonable inferences drawn from Burnside’s
complaint, he has alleged a retaliatory, demotion-like transfer following the
non-endorsement of Sheriff Kaelin in 2012, in violation of his First-
Amendment right of free speech and association.         And, the law is clearly
established that such a retaliatory action, if proved, violates the First
Amendment. Therefore, Kaelin is not entitled to qualified immunity at this
motion-to-dismiss stage for the 2012 transfer.

B. Termination

      As alleged in the complaint, Burnside’s termination resulted from the
dissemination of a tape recording that contained Sheriff Kaelin’s threat
against another officer. The complaint reveals no details about the recording,
its dissemination, or Kaelin’s purported threat. And, the complaint lacks
allegations sufficient to allow any reasonable inferences about such details as
might be required to state a prima facie case. Without some direct allegation
or reasonable inference that Burnside was involved with the recording in some
way, there can be no violation of Burnside’s First-Amendment rights based on
the recording because we are missing a critical element of the claim: some
connection to a constitutionally protected act.
      The only protected activities in Burnside’s complaint occurred in
January 2012, when Burnside and the PAC he chaired failed to endorse Kaelin.
But that occurred more than thirteen months before his employment was
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                                No. 13-41344
terminated in March 2013. The complaint alleges no other facts linking the
two events. Without such facts, we cannot plausibly infer that the termination
was causally related to Burnside’s First-Amendment conduct. And, without a
causal link between the termination and Burnside’s protected activities, there
can be no claim of a constitutional violation as a matter of law. Consequently,
Kaelin is entitled to qualified immunity on Burnside’s termination claim.

                            IV. Conclusion

      For the reasons above, we REVERSE the district court’s denial of
qualified immunity as to the termination claim and AFFIRM the denial of
qualified immunity as to the transfer claim.       We REMAND for further
proceedings consistent with this opinion.
                 REVERSED in part; AFFIRMED in part; and REMANDED.




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