     Case: 11-40407     Document: 00511708002         Page: 1     Date Filed: 12/28/2011




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

                                                                            FILED
                                                                        December 28, 2011

                                     No. 11-40407                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



JO ANNA MILES,

                                                  Plaintiff-Appellee
v.


LAMAR BECKWORTH,

                                                  Defendant-Appellant



                   Appeal from the United States District Court
                         for the Eastern District of Texas
                                    (10-CV-8)


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        This interlocutory appeal arises from the district court’s denial of the
defendant’s motion to dismiss or in the alternative for summary judgment.
Plaintiff filed this 42 U.S.C. § 1983 action based on her First Amendment
retaliation claim. Plaintiff made sexual harassment claims against Thomas
Bledsoe (Bledsoe), plaintiff’s former supervisor at the Texas Department of


        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-40407

Public Safety (DPS). Criminal charges were filed in connection with the sexual
harassment claim and plaintiff testified against Bledsoe at the criminal trial.
Plaintiff alleges that the defendant terminated her position as an administrative
assistant because she testified against Bledsoe. The initial investigation into her
harassment claim produced evidence suggesting that Bledsoe acted
inappropriately.     The defendant ordered a second investigation under the
suspicion that plaintiff may not be credible.             On the basis of the second
investigation, the defendant concluded that there was insufficient evidence to
support the plaintiff’s sexual harassment allegation. Two days after Bledsoe’s
criminal trial, the defendant informed Cherokee County that it no longer needed
Cherokee County to provide it with an assistant. The court found that plaintiff
alleged sufficient facts to support her retaliation claim in this lawsuit and the
defendant is not entitled to qualified immunity. We AFFIRM.
                                          Facts1
       The facts and circumstances surrounding the plaintiff’s separation from
employment with Cherokee County and DPS are disputed. In February, 2009,
plaintiff, Jo Anna Miles (Miles), worked as an administrative assistant to
Bledsoe in Cherokee County, Texas. Bledsoe was the Highway Patrol Sergeant
in Cherokee County for DPS. Although Miles was assigned to work at DPS, she
was an employee of Cherokee County.                At the time, Miles was the only



       1
         The plaintiff worked at Jacksonville DPS office on loan from Cherokee County to the
State. Plaintiff sued Lamar Beckworth of DPS in addition to four other defendants in district
court: Thomas Bledsoe, David Baker, Shanandoah Webb, and Dwight Mathis. Only Lamar
Beckworth is a party on appeal. Plaintiff alleged First Amendment retaliation and tortious
interference with an existing business relationship. Against Bledsoe, she had an additional
claim for civil assault. Plaintiff voluntarily dismissed Baker, Webb, and Mathis. Defendants
Beckworth and Bledsoe filed separate motions to dismiss and for summary judgment. The
district court granted Bledsoe’s motion to dismiss. The court granted Beckworth’s motion to
dismiss the tortious interference claim but denied his motions on the First Amendment
retaliation claim. Defendant Beckworth appeals from the court’s order denying qualified
immunity on the First Amendment retaliation claim.

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administrative assistant Cherokee County provided on loan to DPS. On or about
February 3, 2009, Miles accused Bledsoe of exposing his penis to her at work.
She subsequently made a complaint to various officials. An investigation
concluded that Miles was telling the truth and Bledsoe was suspended with pay
and transferred to the Tyler DPS office. Miles also filed criminal charges against
Bledsoe with the Jacksonville Police Department. Miles spoke of this alleged
harassment with DPS investigators including Lieutenant Shanandoah Webb
(Webb). Webb conducted the initial investigation and determined that Miles’s
indecent exposure claim had merit. Webb also offered deposition testimony in
connection with Miles’s claim. She testified that considering the credibility of
the persons involved and the substance of the statements, “I do believe the
[indecent exposure] incident occurred.” Miles received a letter dated July 16,
2009, from Chief David Baker (Baker), Assistant Director of DPS, stating that
the information obtained during the investigation revealed conduct of sexual
harassment by Bledsoe and that appropriate disciplinary action would be taken.
      As a part of the investigation, Bledsoe and his attorney met with
defendant Lamar Beckworth (Beckworth), the Director of DPS. Miles alleges
that Bledsoe provided false information about her to Beckworth and that Bledsoe
intended to “stir up” resentment against her. After his meeting with Bledsoe,
Beckworth ordered a new investigation and asked the Texas Rangers to check
whether Miles had a history of making false complaints. Sergeant Flores stated
in a DPS interoffice memorandum that Miles had a history of making false
indecent exposure claims. Miles alleges that the new investigation was to cover-
up Bledsoe’s wrongdoing. According to Webb, this is the only time she could
recall when an officer would “re-do” an investigation that had already been
completed. Beckworth testified that based on the completion of the second
investigation, there was insufficient evidence to support a finding that Bledsoe
harassed Miles.     Beckworth sent Miles a letter dated September 9, 2009,

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claiming that the July 16, 2009, letter from Baker had been sent in error and
that Bledsoe was not being discharged because there was insufficient evidence
to prove or disprove Miles’s allegations.
      Bledsoe’s criminal trial began on September 28, 2009 and concluded on
September 30, 2009. Miles testified at trial against Bledsoe. The jury returned
a not guilty verdict. On October 2, 2009, two days after the conclusion of the
trial, Baker, under Beckworth’s direction, dispatched a letter to Cherokee
County to inform it that DPS no longer needed Cherokee County to provide it
with an administrative assistant. Miles alleges that Beckworth had the ultimate
authority to abolish her position and terminated her after Bledsoe’s trial
concluded. Beckworth, however, holds that he lacked authority to terminate
Miles because she was Cherokee County’s employee. On October 9, 2009, Chief
Mathis appeared in Miles’s office and gave her a letter dated October 8, 2009,
telling Miles she must be out of the office by 5:00 p.m. that day. Shortly after
her dismissal, Miles executed a Release, Settlement, and Covenant Agreement
with Cherokee County. In exchange for nine months salary, Miles released
Cherokee County of various claims including sexual harassment, retaliation, and
failure to retain plaintiff as an employee.
                              Standard of Review
      “Generally this Court does not have jurisdiction over interlocutory appeals
of the denial of motions for summary judgment because such pretrial orders are
not “final decisions” for the purpose of 28 U.S.C. § 1291 [ ].” Tamez v. City of San
Marcos, Texas, 62 F.3d 123,124 (5th Cir. 1995)(citing Sorey v. Kellett, 849 F.2d
960, 961 (5th Cir. 1988))(“Under 28 U.S.C. § 1291, the courts of appeals have
jurisdiction over ‘final decisions’ of the district courts. Ordinarily, this section
precludes review of a district court’s pretrial orders until appeal from the final
judgment.”). The Supreme Court, however, has held that a “district court’s
denial of a claim of qualified immunity, to the extent that it turns on an issue of

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law, is an appealable ‘final decision’ within the meaning of 28 U.S.C. § 1291, not
withstanding the absence of a final judgment.” Mitchell v. Forsyth, 472 U.S. 511,
530 (1985); see also Hale v. Townley, 45 F.3d 914, 918 (5th Cir. 1995).
      This court reviews de novo a district court’s denial of a motion for
summary judgment on the basis of qualified immunity. Kovacic v. Villarreal,
628 F.3d 209, 211 (5th Cir. 2010)(citing Flores v. City of Palacios, 381 F.3d 391,
394 (5th Cir. 2004)). “[W]e are restricted to determinations of ‘question[s] of law’
and ‘legal issues,’ and we do not consider the correctness of the plaintiff's version
of the facts.”   Club Retro, L.L.C. v. Hilton, 568 F.3d 181, 194 (5th Cir.
2009)(citation omitted). “When deciding an interlocutory appeal of a denial of
qualified immunity, we do not have jurisdiction to review the genuineness of any
factual disputes but can decide whether the factual disputes are material.”
Kovacic, 628 F.3d at 211, n.1 (citing Wagner v. Bay City, 227 F.3d 316, 320 (5th
Cir. 2000)). “Where factual disputes exist in an interlocutory appeal asserting
qualified immunity, we accept the plaintiffs’ version of the facts as true.” Kinney
v. Weaver, 367 F.3d 337, 348 (5th Cir. 2004)(en banc)(citation omitted).
                                   Discussion
      To hear interlocutory appeals based on qualified immunity, we distinguish
two parts of the district court’s order: (1) where “the district court decides that
a certain course of conduct would, as matter of law, be objectively unreasonable
in light of a clearly established law; and (2) where the court “decides that a
genuine issue of fact exists regarding whether the defendant(s) did in fact
engage in such conduct.” Kinney, 367 F.3d at 346. Both Supreme Court and
Fifth Circuit precedents hold that this court lacks jurisdiction to review the
second type of interlocutory appeal. See Johnson v. Jones, 515 U.S. 304, 313




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(1995); Lemoine v. New Horizons Ranch & Ctr., Inc., 174 F.3d 629, 634 (5th Cir.
1999).2
       This court employs a two-step process to determine whether a “certain
course of conduct” was “objectively unreasonable” as a matter of law. We first
determine whether the official’s conduct violated plaintiff’s constitutional right.
Kinney, 367 F.3d at 356.             We then determine whether “the contours of
[plaintiff’s] right [were] sufficiently clear [at the time of the alleged violation]
that a reasonable official would understand that what he is doing violates that
right.” Id. at 356-357 (quoting Anderson v. Creighton, 483 U.S. 635 (1987)).
When determining whether a “certain course of conduct” would be “objectively
unreasonable” as a matter of law, “we 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
(citing Behrens v. Pelletier, 516 U.S. 299, 313 (1996); Johnson v. Jones, 515 U.S.
304, 313 (1995)).
A) First Amendment Retaliation Claim
       Upon reviewing the plaintiff’s second amended complaint and the evidence
on record, the district court determined that Miles had alleged sufficient facts
and details to show that Beckworth’s conduct violated her First Amendment
right to be free from retaliation for protected speech.




       2
         This court lacks jurisdiction to review the denial of an official’s motion for summary
judgment based on the district court’s finding that factual questions remain on whether the
defendant acted in a way that would violate clearly established law. Because of this
limitation, officials occasionally will have to proceed to trial, although the ultimate resolution
of those factual disputes may show that the official is entitled to qualified immunity. This
‘threatens to undercut’ the policy of providing officials qualified immunity from trial but the
Supreme Court in recognizing this has taken the position that “countervailing considerations”
support limited interlocutory jurisdiction. Kinney, 367 F.3d at 347 n.8 (citing Johnson v.
Jones, 515 U.S. at 317-318).

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      “The government may not constitutionally compel persons to relinquish
their First Amendment rights as a condition of public employment.” Harris v.
Victoria Indep. Sch. Dist., 168 F.3d 216, 220 (5th Cir. 1999)(citing Keyishian v.
Bd. of Regents of the Univ. of the State of N.Y., 385 U.S. 589, 604 (1967)). The
plaintiff seeking recovery against a state official must establish four elements
under a First Amendment retaliation claim: (1) plaintiff must suffer an adverse
employment decision; (2) plaintiff’s speech must involve a matter of public
concern; (3) the plaintiff’s concern must outweigh the defendant’s interest in
promoting efficiency; and (4) the plaintiff’s speech must have motivated the
defendant’s actions. Id.; Kinney, 367 F. 3d at 356. On appeal, Beckworth does
not challenge the second and fourth prongs but argues that Miles has not
effectively established the first and third prongs of her First Amendment
retaliation claim. We will examine prongs one and three in turn.
      As to the first prong, Beckworth argues that his request to transfer Miles
cannot be an adverse employment action. Adverse employment actions against
an employee include discharges, demotions, refusals to hire, refusals to promote,
and reprimands. Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997).
      It is not clear which party or parties possessed actual authority on this
particular employment decision. But Miles alleges that Beckworth is actually
the final decision-maker with regard to her employment despite her status as a
Cherokee County employee. She points to testimonial evidence provided by
Beckworth where he asserted that “the buck stops with [him]” with respect to
terminating Miles’s position. And Miles’s position was eliminated shortly after
she testified against Bledsoe at trial. She received a letter from Chief Mathis,
ordering her to leave DPS. Miles was terminated from DPS and later signed an
agreement releasing Cherokee County from liability. And the extremely close
timing between Miles’s testimony at Bledsoe’s trial and Beckworth’s decision to
“laterally transfer” her upon the conclusion of trial bolsters Miles’s First

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Amendment retaliation claim. “[The] [c]lose timing between an employee’s
protected activity and an adverse action against [her] may provide the ‘causal
connection’ required to make out a prima facie case of retaliation.” Swanson v.
Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir. 1997)(citing Armstrong v. City
of Dallas, 997 F.2d 62, 67 (5th Cir. 1993)). We cannot and need not consider
whether Beckworth’s conduct did in fact lead to Miles’s termination. The
plaintiff has alleged sufficient facts that could establish an adverse employment
action under the first prong. The second and fourth prongs are undisputed, thus
Beckworth’s challenge to the third prong only remains.
       Under the third prong, the plaintiff must show that her interest in
commenting on matters of public concern outweigh the defendant’s interest in
promoting efficiency. Harris, 168 F.3d at 220. The third prong normally would
employ a balancing test as set forth in Pickering v. Bd. of Educ., 391 U.S. 563,
568 (1968).3 Kinney, 367 F. 3d at 356. At the current stage of this lawsuit, the
district court did not need to consider the third element.4 If it were required to,
however, the court would find for Miles because Beckworth failed to present any
argument as to how Miles’s speech: 1) impaired discipline by her supervisors, 2)
disrupted harmony among co-workers, 3) had a detrimental impact on close
working relationships for which personal loyalty and confidence are necessary,




       3
         Pickering, 391 U.S. 563, 568 (1968) (The test involves a “balance between the interests
of the teacher, as a citizen, in commenting upon matters of public concern and the interest of
the State, as an employer, in promoting the efficiency of the public services it performs
through its employees.”).
       4
         Kennedy v. Tangipahoa Parish Library Bd. Of Control, 224 F.3d 359, 366 n.9 (5th Cir.
2000) (explaining, with respect to a Rule 12(b)(6) motion to dismiss, that the third element,
“being the factually-sensitive balancing test that it is, implicates only the summary judgment,
not failure to state a claim, analysis.”)

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or, (4) impeded the performance of plaintiff’s duties or interfered with regular
operation of DPS.5 We agree.
      Our review of the record and the parties’ arguments show that there are
genuine issues of fact which remain. Whether Beckworth had authority to
abolish Miles’s position even though she was a Cherokee County employee is a
disputed issue of fact. The reasons for Miles’s separation from employment are
in dispute. These material facts are unresolved. At this stage, Miles has alleged
sufficient facts that, if established as true, could satisfy the elements of her First
Amendment retaliation claim.
B) Entitlement to Qualified Immunity
   We now turn to the question of whether the defendant is entitled to qualified
immunity. “Government officials performing discretionary functions generally
are shielded from liability for civil damages insofar as their conduct does not
violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982).     Also, under the clearly established test, this court must consider
whether the defendant’s actions were objectively reasonable. “A Government
official’s conduct violates clearly established law when, at the time of the
challenged conduct, “[t]he contours of [a] right [are] sufficiently clear” that every
“reasonable official would have understood that what he is doing violates that
right.” Ashcroft v. al-Kidd, 131 S.Ct. 2074, 2083 (2011)(citing Anderson v.
Creighton, 483 U.S. 635, 640 (1987)). “[T]he Supreme Court has repeatedly
admonished courts not to define clearly established law at a high level of
generality, this does not mean that “a case directly on point” is required. Rather,
“existing precedent must have placed the statutory or constitutional question


      5
          Case No. 6:10-cv-8, District Court Order on Motion to Dismiss at 8.



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beyond debate.”” Morgan v. Swanson, No. 09-40373, slip op. at 154 (5th Cir.
Sept. 29, 2011)(en banc)(citing al-Kidd, 131 S.Ct. at 2083)(emphasis in original).
      Beckworth contends that Miles’s First Amendment retaliation claim is
not based on clearly established federal law.        Prior cases, however, have
established that testimony in judicial proceedings are inherently of public
concern for First Amendment purposes. Johnston v. Harris Cnty. Food Control
Dist., 869 F.2d 1565, 1578 (5th Cir. 1989) (“When an employee testifies before
an official government adjudicatory or fact-finding body, he speaks in a context
that is inherently of public concern”); Smith v. Hightower, 693 F.2d 359, 368 (5th
Cir. 1982)(holding that testimony in criminal proceedings is protected speech);
Reeves v. Claiborne Cnty. Bd. of Educ., 828 F.2d 1096, 1100 (5th Cir.
1987)(holding that testimony in civil proceedings is protected speech). First
Amendment protection for Miles’s speech is clearly established.
      Beckworth emphasizes the fact that he was not Miles’s employer. But the
record suggests that Beckworth might have possessed the authority to eliminate
her position, despite NOT being her employer. Moreover, the Kinney court
discussed governmental relationships between individuals. It held that:
      “(“Pickering balancing analysis is appropriate in cases involving the
      government’s independent contractors or providers of regular
      services as well as its employees because both “type[s] of
      relationship provide [ ] a valuable financial benefit, the threat of the
      loss of which in retaliation for speech may chill speech on matters
      of public concern.”) The Police Officials had the power to deny
      [plaintiffs] significant benefits as ETPA instructors, and it is the
      existence of that sort of power - and not mere labels describing
      governmental relationships - that is relevant for purposes of the
      First Amendment.”



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Kinney, 367 F.3d at 368 (citations omitted). Here, Beckworth as the Director of
DPS, allegedly had the authority to deny employment to Miles who, at the time,
was providing regular services to DPS. And, as Kinney holds, Beckworth’s
authority, not mere labels, is relevant to the analyses of Miles’s retaliation claim.
                                   Conclusion
      At this stage of the proceedings, factual issues remain which preclude the
granting of defendant’s motion to dismiss or for summary judgment. For the
foregoing reasons, we AFFIRM the district court.




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