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holding that fact issue regarding an employer's intent in a First Amendment claim precluded summary judgment on the basis of qualified immunity
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Civil Action No. 3:02-CV-2496-D.
September 21, 2004
MEMORANDUM OPINION AND ORDER
Russell W. Wyman ("Wyman"), who was the Chief Plumbing and Mechanical Code Administrator at defendant City of Dallas ("City") until he was discharged, sues the City and Raj Sharma ("Sharma"), his former supervisor, to recover for retaliation under the First Amendment and the Texas Whistleblower Act ("Whistleblower Act"), Tex. Gov't Code Ann. §§ 554.001-.010 (Vernon 1994 Supp. 2004-05). Wyman alleges that he was terminated because he challenged the City's approval of corrugated stainless steel tubing ("CSST") as an alternative to steel piping in natural gas systems. Both sides move for summary judgment. Wyman also moves to exclude the testimony of three witnesses. For the reasons that follow, the court grants in part and denies in part defendants' motion and denies Wyman's motions.
In his original state court petition, Wyman asserted a state-law claim for intentional infliction of emotional distress. He omitted this cause of action from the amended complaint he seeks leave to file by his February 20, 2004 motion, and he does not address the claim in response to defendants' motion for summary judgment. Because the court deems the claim to have been abandoned, it need not address it.
I
As the City's Chief Plumbing and Mechanical Code Administrator, Wyman's job duties included enforcing the Dallas Plumbing Code. Wyman's supervisor was Jerry Dempster ("Dempster"), one of two Assistant Building Officials who reported to the City's Building Official, defendant Sharma. The Building Official supervises the enforcement of the Plumbing, Electrical, Mechanical, and Building Codes. In 1992 the City adopted the Uniform Plumbing Code of 1991 ("UPC"), with various local amendments. Provisions of the Plumbing Code govern, inter alia, the materials and methods that can be used in plumbing applications. The Plumbing Code lists the materials approved for use. Chapter 52 of the Dallas City Code allows the use of materials and methods of construction not explicitly authorized by a code (including the Plumbing Code) if the Building Official determines that they are equivalent to materials or methods already approved under that code. This approval process, as promulgated by local amendments, differs from the equivalency approval process under the UPC, because the City requires a showing of equivalency in six areas, and the UPC requires only a demonstration in four. Under the City Code, the proposed material or method must meet equivalency standards in the areas of strength, durability, safety, effectiveness, fire resistance, and sanitation, while the UPC requires equivalency in strength, durability, safety, and effectiveness. Approved alternate materials or methods supplement, but do not replace, methods or materials already authorized under the code.A local distributor of CSST sought City approval to use it as an alternative material or method in accordance with the four-factor procedure of the UPC rather than under the applicable six-factor procedure. Consequently, he did not provide evidence regarding sanitation and fire resistance equivalency. Sharma delegated the CSST equivalency determination to Wyman because it was a plumbing issue within his expertise. After Wyman determined that CSST was not equivalent — a decision to which Sharma deferred — proponents of CSST appealed the decision to the Building Inspection, Advisory, Examining and Appeals Board ("Appeals Board"). They sought to demonstrate equivalency under the 1991 UPC procedure, thus failing to present information on sanitation or fire resistance. Wyman did not attend but sent a representative to oppose the appeal on behalf of the City. Nevertheless, based on the presentation of equivalency using the four factors of the UPC, the Appeals Board approved CSST as an alternate material equivalent to steel pipe for use in natural gas systems. The City could have, but did not, seek judicial review of the decision in state court.
Defendants allege that Wyman knew, but did not disclose to CSST proponents, that they were incorrectly attempting to establish equivalency under a UPC procedure that had been modified by local amendments.
The Appeals Board is comprised of experts in the construction industry appointed by the Dallas City Council. Under the City Code, the Appeals Board is authorized to approve or reject the findings of the Building Official in an equivalency determination. See City of Dallas, Admin. Procedures for Construction Codes § 207(a)(2) (1994).
Defendants contend that Wyman mistakenly believed the proponents of flexible CSST were seeking approval as an alternate material rather than as an alternate method, which made approval impossible. Wyman thus believed the Appeals Board only had the option of recommending to the City Council that it adopt CSST.
CSST is different from steel pipe and other materials approved in the Plumbing Code in the manner in which it is installed. Although the Appeals Board approved CSST as a material for use in plumbing, it did not authorize alternative methods of installation. As a result, many required methods of use conflicted with the manner in which CSST should be installed. Wyman believed that this failure to implement alternative methods required that CSST be installed using methods designed for rigid pipe. He did not bring these conflicts to his supervisors' attention.
On August 25, 2000 a CSST sales representative informed Sharma that he intended to install CSST in a new home construction project. Unaware that there would be any difficulty implementing the Appeals Board's approval, Sharma advised the sales representative to proceed with installation of CSST.
On September 1, 2000 Wyman sent a memorandum to Kathy Glegg, Esquire ("Glegg"), an Assistant City Attorney, in which he addressed the need to update the Plumbing Code and his concerns that Code provisions conflicted with state law. He also expressed concern that amendments encouraged by some industry representatives would hamper his department's ability to police and enforce the Plumbing Code effectively.
On September 6 Dempster learned from a CSST industry representative that City inspectors had been advising contractors that CSST was not approved. Dempster requested that he send a written record of his concerns and said he would investigate the matter. The following day the representative sent Sharma and Dempster a letter detailing repeated instances in which City inspectors from Wyman's department did not approve buildings in which CSST was installed, including the location Sharma discussed on August 25. The inspection record for that location contained the following indication: "CSST not approved for use[.]" Dempster also spoke with an inspector who advised that Wyman had instructed him not to approve buildings with CSST because it had not been adopted for use.
On September 11 Wyman wrote Chris Bowers, Esquire ("Bowers"), an Assistant City Attorney, expressing reservations concerning the requirements of the Plumbing Code and the viability of CSST systems in various areas of testing and in light of conflicting Plumbing Code provisions addressing application of materials. Wyman composed another letter on September 11 in which he stated the same concerns to mechanical inspectors and technical managers in the Plumbing Department and directed that they inspect CSST using the Code provisions for iron, brass, or copper pipe.
Defendants contend that Wyman neither indicated that the Appeals Board had exceeded its powers under the City Code nor argued that CSST was not an equivalent material to iron, brass, or copper piping.
Dempster sent Wyman a September 11 memorandum directing him to accept the Appeals Board's equivalency determination of CSST or explain why three locations where CSST was being installed had been found to be in violation of the Plumbing Code. Wyman responded on September 13, stating that he would not ignore the requirements of the Plumbing Code, that CSST's approval as an alternate material did not comply with City Code procedure, and that its installation process conflicted with the Plumbing Code. As a result, Wyman, Sharma, Dempster, and CSST representatives met on September 19. The next day Sharma directed Dempster to draft a pretermination letter outlining allegations of Wyman's violations of the City Code, because he had decided to discharge him.
On March 2, 2000 Dempster issued Wyman a written reprimand. Contained in this reprimand was an order to "[n]otify your supervisor of deviations from division policies or potential problems with projects." Ds. App. 640. Defendants maintain that the September 13 memorandum was the first time Wyman communicated to his supervisors any problems with CSST approval, and they further allege that Wyman's failure to inform them earlier violated his instructions. Sharma received the September 13 memorandum just one day before the deadline for the City to appeal CSST approval. Defendants assert that the late receipt of notice that CSST approval did not meet Code requirements effectively precluded an appeal by the City.
On September 25 Wyman sent a letter to the Appeals Board members in which he raised issues with the Board's equivalency determination for CSST. He asserted that, despite his acceptance of the Appeals Board's "flawed" equivalency determination for CSST, provisions of the Plumbing Code conflicted with use of CSST and the conflicts would have to be remedied by the City Council. He also criticized the Appeals Board's treatment of the representative who presented the City's position during the August 15 hearing, and he took exception to a statement made by Dempster at the hearing regarding adoption of the International Plumbing Code. Wyman asked the Appeals Board to clarify the parameters of CSST approval or, if it intended that the material be used contrary to the methods required by the Plumbing Code, to forward recommendations to the City Council for amendments to the Code. Wyman did not send copies of the document to Sharma or Dempster.
After Wyman failed to attend a scheduled meeting with Dempster on October 6, during which the pretermination letter was to have been provided to him, Sharma mailed the letter, which asserted that Wyman had committed several violations of the City Code during his tenure. The letter cited seven rules violations that warranted termination, including sending correspondence that was not copied to his supervisors. After reviewing Wyman's response to the allegations, Sharma terminated his employment. Wyman appealed unsuccessfully to the Assistant City Manager and to a Civil Service Trial Board ("Trial Board"). Wyman then brought this suit in state district court, and defendants removed the case based on this court's federal question jurisdiction over Wyman's First Amendment retaliation claim.
The pretermination letter specifically cited the memoranda to Glegg, Bowers, and the Appeals Board.
The Assistant City Manager rescinded the allegation that Wyman should have copied his supervisor, but upheld the termination.
Defendants move for summary judgment on all claims, and Wyman moves for partial summary judgment.
Wyman's motion is for partial summary judgment because he seeks to establish liability and a right to reinstatement, leaving the issue of damages to be decided at trial.
II
Defendants seek summary judgment dismissing Wyman's First Amendment retaliation claim on the ground that he is asserting it directly under the Constitution, which does not of itself confer a cause of action. Wyman responds that his claim is properly asserted, and he moves in the alternative for leave to amend to allege his cause of action under 42 U.S.C. § 1983.A
Wyman alleges that he should be permitted to assert a claim directly under the First Amendment. He maintains that if he is unable to demonstrate that an official policy of the City violated his constitutional right to free speech, as is required to hold the City liable under § 1983, he should be permitted to proceed directly under the First Amendment. Wyman asserts that the failure to meet the requirements of § 1983 will leave him without a remedy and that the inability to obtain a remedy permits him to assert a claim directly under the First Amendment. The court disagrees.
Wyman cites Davis v. Passman, 442 U.S. 228 (1979), and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), arguing that the Supreme Court has permitted claims made directly under the Constitution when failure to recognize such claims would leave the plaintiff without a remedy. Wyman's reliance on this authority to contend that the court should permit him to proceed directly under the First Amendment is unfounded. Cases in which the Supreme Court has permitted direct claims under the Constitution have involved deprivations of constitutional rights by acts of federal, not state, agents. See Carlson v. Green, 446 U.S. 14, 16 (1980) (federal prison officials); Davis, 442 U.S. at 230-31 (Congressman); Bivens, 403 U.S. at 389 (federal law enforcement agents). The Court has been reluctant to extend Bivens, and it has expressly rejected the argument that Wyman advances: that the unavailability of a judicial remedy warrants recognition of an implied action under the Constitution. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 68-69 (2001) ("We therefore rejected [in Schweiker v. Chilicky, 487 U.S. 412 (1988),] the claim that a Bivens remedy should be implied simply for want of any other means for challenging a constitutional deprivation in federal court.").
Accordingly, the court holds that Wyman cannot recover directly under the First Amendment.
B
Wyman moves in the alternative for leave to amend his state court petition to assert a First Amendment claim under § 1983. He maintains that the petition addresses the required elements of such a claim: (1) an adverse employment action, (2) speech involving a matter of public concern, (3) his interest in commenting on public concern outweighed the City's interest, and (4) the speech motivated the termination of employment. Wyman argues that not invoking § 1983 explicitly was not a strategic decision, and that the City understood that he was asserting a First Amendment claim. He also contends that permitting him to amend will not cause undue delay or prejudice. Defendants oppose his request.
The court recognizes that it has the discretion to deny Wyman's request for leave to amend, which he made after defendants had moved for summary judgment. See, e.g., Overseas Inns S.A.P.A. v. United States, 911 F.2d 1146, 1151 (5th Cir. 1990) (affirming this court's decision to deny motion for leave to amend after summary judgment motion filed, and reprinting this court's reasoning). In the present case, however, the court discerns no reason not to permit Wyman to amend. His second amended state court petition alleges the elements of a § 1983-based First Amendment claim, without explicitly citing the statute. As indicated in their notice of removal, defendants were able to determine from the pleading that it "allege[s] a violation of his free speech rights under the First Amendment," Not. Rem. at 2, and was therefore removable under this court's federal question jurisdiction. Because the amended state court petition gave defendants fair notice that Wyman was attempting to assert a claim for relief under the First Amendment (albeit directly rather than under § 1983), and he alleged the elements of relief for a § 1983 cause of action, the court concludes that be should be permitted to amend his complaint.
Accordingly, the court grants Wyman's motion for leave to file an amended complaint to state a First Amendment retaliation claim under § 1983.
The proposed pleading that Wyman has tendered for filing is styled an "original complaint," perhaps because it is the first complaint filed in this case in federal court. He is directed to revise this pleading to style it as his "third amended complaint" and to file it within ten days of the date this memorandum opinion and order is filed.
III
The court considers whether defendants are entitled to summary judgment dismissing Wyman's First Amendment retaliation claim and whether Wyman is entitled to summary judgment on that claim.
"There are four elements to an employee's First Amendment retaliation claim against his employer: First, the Plaintiffs must suffer an adverse employment decision. Second, the Plaintiffs' speech must involve a matter of public concern. Third, the Plaintiffs' interest in commenting on matters of public concern must outweigh the Defendants' interest in promoting efficiency. Fourth, the Plaintiffs' speech must have motivated the Defendants' action." Teague v. City of Flower Mound, Tex., 179 F.3d 377, 380 (5th Cir. 1999) (citations and internal quotation marks omitted). Defendants do not dispute, either in their own motion for summary judgment or in response to Wyman's motion, that Wyman experienced an adverse employment decision.
Because Wyman bears the burden of proving his First Amendment claim at trial, to be entitled to summary judgment he "must establish `beyond peradventure all of the essential elements of the claim[.]'" Bank One, Tex., N.A. v. Prudential Ins. Co. of Am., 878 F.Supp. 943, 962 (N.D. Tex. 1995) (Fitzwater, J.) (quoting Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th Cir. 1986)).
A
To prevail on this claim, Wyman must demonstrate that his speech involved a matter of public concern. See Aucoin v. Haney, 306 F.3d 268, 274 (5th Cir. 2002). The City argues that Wyman's September 1 memorandum to Glegg, September 11 memorandum to Bowers, September 13 memorandum to Dempster, and September 25 memorandum to the Appeals Board cannot be considered speech on a matter of public concern because he sent them internally and drafted them only in his capacity as an employee regarding matters of private interest. Conversely, Wyman argues in his cross-motion that the City has failed to demonstrate that violations of the Texas Plumbing License Law and the Plumbing Code are not matters of public concern. He also argues that his reports involving violations of local law and official misconduct amounted to matters of public concern.The question whether speech involves an issue of public concern is one of law to be resolved by the court. Coughlin v. Lee, 946 F.2d 1152, 1156 (5th Cir. 1991). In making this determination, the court reviews the "content, form, and context of a given statement, as revealed by the whole court record." Teague v. City of Flower Mound, Tex., 179 F.3d 377, 380 (5th Cir. 1999) (quoting Connick v. Myers, 461 U.S. 138, 147-48 (1983)). The court examines "whether the speech at issue in a particular case was made primarily in the plaintiff's role as citizen or primarily in his role as employee." Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360, 1362 (5th Cir. 1986). Public employees' speech on matters of private concern in most instances will not support a First Amendment violation.
We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances, a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee's behavior.Connick, 461 U.S. at 147. The Fifth Circuit has distilled "three reliable principles" from its determinations of public concern:
First, the content of the speech may relate to the public concern if it does not involve solely personal matters or strictly a discussion of management policies that is only interesting to the public by virtue of the manager's status as an arm of the government. If releasing the speech to the public would inform the populace of more than the fact of an employee's employment grievance, the content of the speech may be public in nature. Second, speech need not be made to the public, but it may relate to the public concern if it is made against the backdrop of public debate. And third, the speech cannot be made in furtherance of a personal employer-employee dispute if it is to relate to the public concern.Kennedy v. Tangipahoa Parish Library Bd. of Control, 224 F.3d 359, 372 (5th Cir. 2000) (citations omitted).
The court must decide whether the Wyman memoranda related to matters of political, social, and educational concern and therefore involved matters of public concern, Connick, 461 U.S. at 147-48, "or if the information conveyed is of `relevance to the public's evaluation of the performance of governmental agencies,'" Coughlin, 946 F.2d at 1157 (quoting Day v. South Park Independent School District, 768 F.2d 696, 700 (5th Cir. 1985)).
Wyman wrote the September 1 memorandum to Glegg in his capacity as Chief Plumbing and Mechanical Code Administrator, ostensibly to obtain guidance regarding the ordinance updates. Publishing the contents of the communication, however, would reveal more to the public than existence of a personal grievance. Wyman raised concerns related to updating the City's mechanical and plumbing ordinances and identified deficiencies in them. He questioned the motives of those who opposed adoption of the Uniform Codes and expressed concern that changes advocated by a design group would contravene applicable law and dramatically alter the methods by which his inspection staff operated. Although this matter was not the subject of widespread public debate, it was apparently the topic of some discussion among the public, including members of the plumbing trades who wanted the City Council to adopt alternate codes. His communication to Glegg was not made in furtherance of any employer-employee dispute. The public's knowledge that Plumbing Code provisions in place at the time conflicted with state requirements would be relevant to its evaluation of the City's performance of its duties to maintain Building Codes.
Wyman wrote the September 11 memorandum to Bowers, the September 13 memorandum to Dempster, and the September 25 memorandum to the Appeals Board after the Board approved CSST as an alternative material, without considering its comparability concerning fire resistance and sanitation. Concluding that approval of CSST as an alternative material created conflicts with other provisions of the Plumbing Code, Wyman sought to bring these conflicts to Bowers' attention while also seeking guidance on reconciling approval of CSST with other City Code provisions that were incompatible with CSST installations. In the memoranda to Dempster and the Appeals Board, Wyman clearly noted that his concern with the approval of CSST "has been for safety reasons and protection of our citizens." Ds. App. 556, 560. Moreover, unlike previous memoranda, his memorandum to the Appeals Board did not reflect his job title, was not written on City letterhead, and appears to reflect his home rather than office address.
By the time Wyman authored each CSST memorandum, the public discussion of CSST's equivalency had apparently concluded, and Wyman's speech cannot be considered to have occurred "against the backdrop of public debate." Kennedy, 224 F.3d at 372. Wyman wrote the memoranda to Bowers and Dempster in his official capacity. The form of the Appeals Board memorandum, however, weighs toward concluding that Wyman wrote it primarily in his role as a citizen. Although Wyman does complain in the memoranda to Dempster and the Appeals Board about treatment of the City's representative at the August 15 hearing, the primary purpose of the communication is not to discuss personnel management issues but to raise issues regarding conflict between the Appeals Board's action and the City Code requirements for installation of natural gas systems. Publication of Wyman's comments would inform the public of the position of a city employee that the Appeals Board approved a natural gas medium without reconciling other relevant aspects of the Plumbing Code. These facts would be important to the public's evaluation of the Appeals Board's performance, see Coughlin, 946 F.2d at 1157, and are relevant to public safety, see Kennedy, 224 F.3d at 373 ("Speech that potentially affects public safety relates to the public concern."). Wyman's CSST memoranda do not simply further an employer-employee dispute. The court therefore concludes as a matter of law that the memoranda address matters of public concern.
B
Defendants also maintain that they are entitled to summary judgment concerning the component of Wyman's claim based on his September 11 memorandum to Bowers because the City's interest in promoting efficiency outweighed Wyman's interest in commenting on matters of public concern. They argue that Wyman's conduct resulted in inconsistent instructions from the City to those attempting to use CSST and that Wyman's "piecemeal communication" with inspectors and supervisors disrupted City services. Specifically, defendants point to a CSST distributor's inability to obtain approval for a construction project from Wyman's inspectors despite Sharma's previous advice that CSST was acceptable. Defendants assert that the inability to obtain a prompt resolution of the issue caused the construction project to sit idle for weeks and caused other builders to expend significant resources while attempting to receive a final decision from the City. Defendants further allege that Wyman prevented effective appeal of the Appeals Board decision by not promptly informing Sharma. They maintain that Wyman's actions affected working relationships necessary to proper functioning of the department because he sought out Bowers for clarification of the Plumbing Code despite the fact that Sharma, as Building Official, was authorized to clarify application of the Building Codes. Wyman contends that, in Dempster's deposition, he did not specifically identify any disruption that Wyman's speech caused and that the balancing therefore weighs in his favor.
The court must balance the interests of a public employee in commenting on matters of public concern against a government agency's interest in promoting efficiency of services performed through its employees. See Pickering v. Bd. of Educ. of Township High Sch. Dist. 205, 391 U.S. 563, 568 (1968); Kinney v. Weaver, 367 F.3d 337, 361 (5th Cir. 2004) (en banc). Weighing these interests "involves whether the speech: (1) was likely to generate controversy and disruption, (2) impeded the department's general performance and operation, and (3) affected working relationships necessary to the department's proper functioning." Brawner v. City of Richardson, Tex., 855 F.2d 187, 192 (5th Cir. 1988). The weight of Wyman's interest in speaking is not measured solely by his personal gain realized from the speech. See Kinney, 367 F.3d at 361. "It is, rather, a function of the social value of that speech." Id. Speech related to official misconduct has significant social value. Id.
Wyman commented on the need to update ordinances and the inconsistencies created by the Appeals Board's approval of CSST. The social value of ensuring that ordinances that control building construction comply with applicable laws is considerable, and Wyman's interest in speaking is significant.
In weighing the City's interest, the court examines "how the speech at issue affects the government's interest in providing services efficiently. It is the speech's detrimental effect on the efficient delivery of public services that gives the government a legitimate interest in suppressing it." Kinney, 367 F.3d at 362 (emphasis omitted). Defendants contend that Wyman's speech disrupted delivery of City services by sending mixed messages to CSST distributors and installers regarding approval of CSST. Assuming arguendo that this is true, it is doubtful that Wyman's speech could have negatively affected the proper functioning of the City. Wyman essentially maintained by his statements that the City was not functioning properly because, in approving materials, it was acting inconsistently with the City Code and irreconcilably with other Code provisions. Cf. Brawner, 855 F.2d at 192 ("[Plaintiff's] statements could not have adversely affected the proper functioning of the department since the statements were made for the very reason that the department was not functioning properly due to corruption."). Wyman's interest in speaking outweighs the City's interest in providing services efficiently. Accordingly, the court denies defendants' motion for summary judgment on this ground.
C
Defendants assert that Wyman cannot demonstrate that his speech motivated the City's decision to terminate him. Wyman maintains that he is entitled to summary judgment establishing that he was discharged for engaging in protected speech.Sharma's letter cited Wyman's memoranda to Glegg, Bowers, and the Appeals Board as reasons for terminating him. Although Sharma did not mention the content of these documents as a basis for termination, Wyman points out that during August 2000 he wrote memoranda to the Appeals Board concerning the CSST appeal outlining the City's position and to the Appeals Board concerning an unrelated equivalency determination, and in September 2000 wrote a memorandum to Sharma's superior discussing customer service inspections, none of which he sent to Sharma or Dempster. Wyman posits that he was not disciplined for sending these memoranda without copying his supervisors, and he contends that this supports the inference that he was terminated based on the content of the memoranda rather than on the act of sending them without notifying his supervisors. Wyman has created a genuine issue of material fact whether the City discharged him based on the content of the documents. See Branton v. City of Dallas, 272 F.3d 730, 746 (5th Cir. 2001).
The court also concludes, however, that Wyman is not entitled to summary judgment that defendants retaliated against him for engaging in protected speech. Defendants maintain that the City terminated Wyman based on the form, not content, of his communications. They cite seven reasons for discharging him, including that he refused to enforce the Appeals Board's ruling, placed unreasonable restrictions on the use of CSST, failed to perform his duties competently, failed to inform his supervisors of problems with CSST approval, sent memoranda to other departments without copying his supervisors, and failed to report for a meeting with Dempster. Viewing this evidence in a light most favorable to defendants, a trier of fact could reasonably find that the content of Wyman's memoranda did not motivate the City to terminate him. Accordingly, Wyman cannot establish beyond peradventure that the content of his memoranda motivated the City to terminate him, and his motion for partial summary judgment is denied.
Wyman advances a hearsay objection to defendants' reference to statements contained in memoranda that Charlie Hall and Dave Tharp authored and to references to a statement that Jim O'Neil ("O'Neil") made to Dempster and that he repeated to Sharma. The court overrules the objection because defendants are not offering these statements to prove the truth of the matters asserted. They are doing so to demonstrate that Sharma's belief that Wyman refused to enforce the Appeals Board's ruling was reasonable. Wyman also makes a best evidence objection to the use of O'Neil's statement. This objection is overruled because Sharma's testimony does not involve proof of the content of a writing, recording, or photograph, as required under Fed.R.Evid. 1002.
D
Defendants argue alternatively that they are entitled to summary judgment because, even if Wyman's protected speech was a motivating factor in the decision to terminate him, the City would have discharged him anyway. They reason that Sharma determined as early as September 13 that disciplinary action would be taken against Wyman, and he subsequently requested on September 20 that Dempster draft a letter outlining allegations in anticipation of discharging him. Defendants maintain that Wyman's September 25 memorandum to the Appeals Board is moot because it followed Sharma's decision to terminate Wyman and, since Sharma was not copied on the September 1 memorandum to Glegg, he was unaware of Wyman's objection to the Appeals Board's approval of CSST systems. Defendants also posit that the Assistant City Manager and the Trial Board, which is composed of three members appointed by the Dallas City Council, both affirmed the allegations and determined that he should be discharged.
Because defendants will have the burden of proving this defense at trial, they "must establish `beyond peradventure all of the essential elements of the . . . defense.'" Bank One, 878 F.Supp. at 962 (quoting Fontenot, 780 F.2d at 1194).
Assuming arguendo that Sharma decided on September 20 to terminate Wyman's employment, defendants have addressed neither the Bowers memorandum dated September 13 nor Wyman's August 1 letter to the Appeals Board, in which he objected to the approval of CSST, did not copy his supervisors, but did not suffer an adverse employment decision. Wyman has presented a fact question concerning the decision to terminate his employment based on Sharma's deposition testimony that he "d[id]n't know exactly the date" when he considered the adverse employment decision, Ds. App. 153, and his affidavit testimony that September 20 was the date he decided to discharge Wyman, id. at 481, and that "[a]fter reviewing Wyman's September 13, 2000 memo and discussing it with Dempster, [Sharma] knew that disciplinary action against Wyman was warranted," id. at 480. There is a genuine issue of material fact regarding the timing of the decision to terminate Wyman. Defendants are not entitled to summary judgment.
Defendants point out that the Assistant City Manager affirmed Wyman's termination although she removed the allegation that he had sent the memoranda without copying supervisors. Additionally, defendants have shown that the Trial Board affirmed Wyman's termination without considering the memoranda. They contend that the Trial Board's action demonstrates that Wyman would have been discharged for reasons unrelated to the content of his speech. Defendants do not, however, present evidence or argue that the Trial Board was the decisionmaker that determined that Wyman would be terminated. There is summary judgment evidence that Sharma was the decisionmaker who initiated the termination process. His decision to discharge Wyman would have been final had Wyman not chosen to appeal it. See Hitt v. Connell, 301 F.3d 240, 248 (5th Cir. 2002).
E
The City contends it is entitled to summary judgment because Wyman cannot establish that an official City policy violated his constitutional rights, that his rights were denied by a City policymaking authority, or that his rights were suppressed by a standard procedure or practice of the City. Wyman responds that Sharma's decision to terminate him and the City's failure to reinstate him amounted to an official policy. Alternatively, he argues that the decision of the Trial Board was an adverse action taken by a final policymaker and that the Trial Board refused to admit evidence of his pretext defense and acted to ensure his injury.Although municipalities are "persons" under § 1983, Monell v. Department of Social Services, 436 U.S. 658, 688-89 (1978), they may not be held liable simply on a theory of respondeat superior, id. at 691. Rather, liability attaches only "when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury." Id. at 694. "In other words, `the act of the municipality is the act only of an authorized policymaker or of an employee following the policymaker's lead.'" Burge v. Parish of St. Tammany, 187 F.3d 452, 471 (5th Cir. 1999) (quoting Bryan County Comm'r v. Brown, 520 U.S. 397, 417 (1997) (Souter, J., dissenting)). To avoid summary judgment, Wyman must offer evidence that would allow a reasonable trier of fact to find that his injury resulted from the exercise of the City's official policy. See Hinds v. Slagel, 2002 WL 1398557, at *2 (N.D. Tex. May 29, 2002) (Stickney, J.) (citing Monell, 436 U.S. at 694; Bennett v. City of Slidell, 728 F.2d 762, 766 (5th Cir. 1984) (en banc)), rec. adopted, 2002 WL 1398557 (N.D. Tex. June 26, 2002) (Fitzwater, J.).
In determining whether the City's actions amounted to an official policy that would give rise to municipal liability, the court assesses whether the disputed action was:
1. A policy statement, ordinance, regulation, or decision that is officially adopted and promulgated by the municipality's lawmaking officers or by an official to whom the lawmakers have delegated policy-making authority; or 2. A persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted and promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy. Actual or constructive knowledge of such custom must be attributable to the governing body of the municipality or to an official to whom that body had delegated policy-making authority. Actions of officers or employees of a municipality do not render the municipality liable under § 1983 unless they execute official policy as above defined.Webster v. City of Houston, 735 F.2d 838, 841 (5th Cir. 1984) (en banc) (per curiam). When someone seeks to establish an official policy on the basis of an informal but "persistent, widespread practice of city officials or employees," he must make a showing both of the existence of the practice and of actual or constructive knowledge on the part of the government body or officials to whom the body has delegated policymaking power. Id. Under this standard, a municipality is liable only if the policy or custom is attributable to a person with policymaking authority. See Monell, 436 U.S. at 694.
Wyman has failed to establish that the City adopted a policy or custom that violated his constitutional right to free speech. He does not argue that the Dallas City Council, as the governing body, maintained a policy of terminating employees who speak on matters of public concern or that the City Council had either actual or constructive knowledge of a custom of such practice.
Wyman argues in the alternative that the Trial Board is a final policymaker. Whether an official has been delegated final policymaking authority is a question of state law to be determined by the court. See Gros v. City of Grand Prairie, Tex., 181 F.3d 613, 617 (5th Cir. 1999) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 737 (1989)). State law, including valid local ordinances and regulations, "will always direct a court to some official or body that has the responsibility for making law or setting policy in any given area of a local government's business." City of St. Louis v. Praprotnik, 485 U.S. 112, 125 (1988) (footnote omitted). "[T]he delegation of policymaking authority requires more than a showing of mere discretion or decisionmaking authority on the part of the delegee." Bennett, 728 F.2d at 769. Wyman must also show that the City "expressly or impliedly acknowledge[s] that the [Trial Board] acts in lieu of the governing body to set goals and to structure and design the area of the delegated responsibility, subject only to the power of the governing body to control finances and to discharge or curtail the authority of the agent." Id. In determining whether the Trial Board is a final policymaker, the court must "consider state and local positive law as well as evidence of the City's customs and usages in determining which City officials or bodies had final policymaking authority over the policies at issue in this case." Gros, 181 F.3d at 616.
The burden rests on Wyman to identify the positive law or evidence of custom demonstrating that the Trial Board is a policymaker. See Bass v. Parkwood Hosp., 180 F.3d 234, 244 (5th Cir. 1999); Macias v. Raul A. (Unknown), Badge No. 153, 23 F.3d 94, 99 (5th Cir. 1994). Wyman has pointed to no positive law or evidence of custom on which the court can conclude that the Trial Board is a final policymaker for the City with regard to employment decisions. He instead relies solely on his conclusory assertion that "[c]ertainly the action of the Trial Board was [the] decision of a final policy maker, which the Dallas City Council created." P. Resp. Br. at 45.
"Summary judgment should be granted . . . `when the nonmoving party fails to meet its burden to come forward with facts and law demonstrating a basis for recovery that would support a jury verdict.'" Beattie v. Madison County Sch. Dist., 254 F.3d 595, 600 (5th Cir. 2001) (quoting Little v. Liquid Air Corp., 37 F.3d 1069, 1071 (5th Cir. 1994) (en banc)).
Although the court is not granting summary judgment on this basis because defendants did not clearly present the argument, the court notes that Wyman has also failed to produce evidence that the Trial Board was "the `moving force' behind the injury alleged," Brown, 520 U.S. at 404, or that it acted with deliberate indifference to his First Amendment rights, id. at 404-05. Wyman's only allegation regarding action taken by a policymaker is that the Trial Board refused to allow him to present a pretext defense to his termination and thus ensured his injury. The transcript of his Trial Board hearing indicates only that the Board refused his request for an opportunity to offer proof concerning Sharma's disagreement with the Appeals Board's approval of CSST as an equivalent material or method.
Accordingly, the court grants defendants' motion for summary judgment dismissing Wyman's First Amendment retaliation claim against the City.
IV
Defendants move for summary judgment on Sharma's affirmative defense of qualified immunity. They maintain that Sharma's decision to terminate Wyman's employment was objectively reasonable even if Wyman's First Amendment rights were violated. Wyman responds that his termination was objectively unreasonable because it was undertaken in retaliation for exercising his First Amendment rights.
It does not appear that defendants rely on the Mt. Healthy defense to argue that Sharma is entitled to qualified immunity because "a reasonable public official would have believed that the decision to terminate [Wyman's] employment would not `violate clearly established . . . constitutional rights' because the same employment action would have been taken [anyway]." Gonzales, 249 F.3d at 413; see Ds. Sum. J. Br. at 39-40. It is unclear whether defendants intended to raise this argument. They cite neither Mt. Healthy nor Gonzales in the relevant section of their brief and do not clearly state this contention. Defendants have not sufficiently presented this argument to put Wyman on notice that his failure to respond would be a basis for summary judgment. See John Deere Co. v. Am. Nat'l Bank, Stafford, 809 F.2d 1190, 1191 (5th Cir. 1987). The court cannot grant summary judgment on a ground concerning which the nonmovant lacks adequate notice. See id. at 1192.
A
The qualified immunity determination requires a two-step analysis at the summary judgment stage. The court must determine "whether the challenged conduct, viewed in the light most favorable to the plaintiff, would actually amount to a violation of federal law in the first place." Kinney, 367 F.3d at 350 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). If it would, the court must next examine the objective reasonableness of the defendant's conduct. See Salas v. Carpenter, 980 F.2d 299, 305-06 (5th Cir. 1992). "The defendant's acts are held to be objectively reasonable unless all reasonable officials in the defendant's circumstances would have then known that the defendant's conduct violated the plaintiff's asserted constitutional or federal statutory right." Cozzo v. Tangipahoa Parish Council-President Gov't, 279 F.3d 273, 284 (5th Cir. 2002) (internal quotation marks omitted) (quoting Thompson v. Upshur County, Tex., 245 F.3d 447, 457 (5th Cir. 2001)).
This determination is a matter of law for the court to decide. See Siegert v. Gilley, 500 U.S. 226, 232 (1991).
B
The court examines whether Wyman has adduced evidence of a constitutional violation. One ground for discharging Wyman that Sharma cited in the termination letter was his transmittal of memoranda to Glegg, Bowers, and the Appeals Board without copying his supervisors. Wyman has adduced evidence that he sent other memoranda to the Appeals Board and other departments during approximately the same time period. He was not disciplined for sending these documents, even though he did not transmit copies to his supervisors. Viewing the challenged conduct in the light most favorable to Wyman, a reasonable trier of fact could find that, in choosing to discharge Wyman, Sharma was motivated at least partially by the content of Wyman's speech regarding approval of CSST in violation of procedures required by the City Code. This impermissible intent, if proved, would violate Wyman's First Amendment right to free speech. The presence of such a genuine issue of material fact precludes summary judgment on the basis of qualified immunity. See Kinney, 367 F.3d at 373 ("When an official's intent or the reasons for his or her actions are an essential element of the underlying violation, we have treated factual disputes over intent just like any other factual dispute that can justify a denial of qualified immunity.") (citing Tompkins v. Vickers, 26 F.3d 603, 607-10 (5th Cir. 1994)).
C
Wyman must next demonstrate that the contours of the First Amendment right to freedom of speech were sufficiently clear that a reasonable official in Sharma's position would have understood that his conduct violated the law. See Kinney, 367 F.3d at 367 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)). "Qualified immunity should not be denied unless the law is such that reasonable officials should be `on notice [that] their conduct is unlawful.'" Id. (quoting Saucier, 533 U.S. at 206).
It has long been clear that a public official cannot retaliate against an employee for reporting misconduct on the part of other public employees. See Warnock v. Pecos County, Tex., 116 F.3d 776, 782 (5th Cir. 1997); Thompson v. City of Starkville, Miss., 901 F.2d 456, 470 (5th Cir. 1990) ("[T]his court and the Supreme Court have repeatedly reaffirmed the protection accorded to speech by a public employee speaking out on matters of public concern, especially where the employee's speech exposes improper conduct on the part of other public employees."); Brawner, 855 F.2d at 193 ("It was clearly established that a public employee's speech revealing improper conduct by fellow employees was protected."). Thus if Wyman proves that the content of his memoranda motivated Sharma to terminate him, such retaliatory action is not within the bounds of what a reasonable building official could have thought permissible. Cf. Thompson, 901 F.2d at 470; Frazier v. King, 873 F.2d 820, 827 (5th Cir. 1989) (holding that reasonable prison official would know that it would violate nurse's rights to fire her for reporting illegal behavior in prison medical ward); Brawner, 855 F.2d at 193. All reasonable building officials would know that a subordinate cannot be discharged for reporting misconduct.
Accordingly, defendants' motion for summary judgment in favor of Sharma based on qualified immunity is denied.
V
Defendants also move for summary judgment dismissing Wyman's Whistleblower Act claim. They maintain that Wyman cannot assert this cause of action against Sharma individually because the Act does not provide for a private cause of action against supervisors and officials. The court agrees.
In his response, Wyman only contests defendants' assertion of qualified immunity on his First Amendment claim and does not dispute defendants' arguments concerning the Whistleblower Act claim.
The Whistleblower Act "does not create a cause of action against employees of a public agency. Instead, the statute creates a cause of action against state local or governmental agencies." Hoskins v. Kaufman Indep. Sch. Dist., 2003 WL 21517830, at *4 (N.D. Tex. June 30, 2003) (Fitzwater, J.) (quoting Rodriguez v. Laredo Indep. Sch. Dist., 82 F.Supp.2d 679, 688 (S.D. Tex. 2000), reconsideration denied, 143 F.Supp.2d 727 (S.D. Tex. 2001)). Wyman's Whistleblower Act claim against Sharma is dismissed.
VI
The court next considers Wyman's claim against the City under the Whistleblower Act.
A
"In order to prevail under the Texas Whistleblower Act, a plaintiff must demonstrate: 1) he is a public employee; 2) he acted in good faith in making a report; 3) the report involved a violation of law by an agency or employee; 4) the report was made to an appropriate law enforcement authority; and 5) he suffered retaliation." Tharling v. City of Port Lavaca, 329 F.3d 422, 428 (5th Cir. 2003) (citing Duvall v. Tex. Dep't of Human Servs., 82 S.W.3d 474, 478 (Tex.App. 2002, no pet.); Tex. Gov't Code Ann. § 554.002 (West 1994 Supp. 2002)). A plaintiff must prove a causal link between the report and the subsequent adverse employment action. Id. at 430 (citing City of Fort Worth v. Zimlich, 29 S.W.3d 62, 67 (Tex. 2000)). The purposes of the Whistleblower Act are to promote open government by preventing retaliation against public employees who report unlawful activity and to secure lawful conduct by public officials. Duvall, 82 S.W.3d at 478. "The act is remedial in nature and must be liberally construed." Id.
The City does not contest that Wyman was a public employee. It argues instead that it is entitled to summary judgment because Wyman did not report in good faith a violation of law, did not report to an appropriate law enforcement agency, and cannot demonstrate that his discharge is causally related to his reports. Wyman asserts that he is entitled to summary judgment on the Whistleblower Act claim because he can establish all elements of the claim.
B
The City maintains that Wyman cannot establish that he acted in good faith in reporting a violation of law. As used in the Whistleblower Act, good faith "means that (1) the employee believed that the conduct reported was a violation of law and (2) the employee's belief was reasonable in light of the employee's training and experience." Wichita County, Tex. v. Hart, 917 S.W.2d. 779, 784 (Tex. 1996). The first prong incorporates a subjective "honesty in fact" requirement. Id. at 785. The second element requires that the employee's belief be one that would be held by a reasonable employee in the same circumstances. Id.Wyman contends that the contents of each memorandum evince his subjective belief that he reported a violation of law. In the memorandum to Glegg, he advised that the Plumbing Code was inconsistent with the Texas Plumbing License Law in a manner that violated state law. Wyman also stated in his affidavit that he wrote to Glegg to report violations of the Texas Plumbing License Law and the City's failure to enforce the City Code. Wyman has not, however, presented evidence that would permit a reasonable jury to find that his belief that he was reporting a law violation was objectively reasonable. In discussing the reasonableness of his beliefs, Wyman points only to the CSST issues and does not argue the reasonableness of his belief regarding the memorandum to Glegg. Because Wyman has neither argued nor adduced evidence that would permit the finding that his belief was reasonable, the court grants summary judgment on Wyman's Whistleblower Act claim with respect to the memorandum to Glegg.
Turning to the memoranda addressed to Bowers and the Appeals Board, there is an apparent discrepancy in Wyman's briefing as to the violation he allegedly reported. Wyman appears to contend that he reported two violations: that the Appeals Board's equivalency determination violated City Code requirements and that approval of CSST created inconsistencies between manufacturers' installation requirements and Plumbing Code installation requirements. Wyman asserts in his affidavit that he intended to report violations of the City Code and Plumbing Code in the memorandum to Bowers, see P. App. 5, and intended to report violations of the Plumbing Code in his memorandum to the Appeals Board, id.
Wyman must also produce evidence that his belief was reasonable based on his experience and training. A reasonable trier of fact could not find, however, that Wyman used the memoranda to Bowers and the Appeals Board to report that the equivalency decision contravened City Code requirements. Although Wyman noted in the Bowers memorandum that the Appeals Board could not waive City Code requirements, he did not report that the Appeals Board's equivalency determination violated the law. In the memorandum to the Appeals Board, Wyman simply characterized the Appeals Board's determination as "flawed." Ds. App. 560. No reasonable trier of fact, considering the two memoranda in their entirety, could conclude from their content that Wyman was reporting that the Appeals Board had violated the City Code by approving CSST without considering equivalency as to fire resistance and sanitation. To support the reasonableness of his belief concerning the maintenance of inconsistent installation standards, Wyman points to Sharma's deposition testimony and the Trial Board testimony of Assistant City Manager Jill Jordan ("Jordan"). Sharma testified that the Appeals Board could not modify the Plumbing Code. Jordan testified that no City employee had the authority to waive or ignore provisions of the City Code. A reasonable trier of fact could find from this evidence that Wyman reasonably believed that installation of CSST according to manufacturers' specifications would contravene the Plumbing Code and that neither a City employee nor the Appeals Board was able to authorize such installation. Wyman has demonstrated a genuine issue of material fact concerning the reasonableness of his belief that he reported a violation of law when he reported that CSST installations would contravene the mandates of the Plumbing Code.
C
The City next asserts that Wyman did not make a report to an appropriate law enforcement agency. Wyman responds that the City Attorney's Office and the Appeals Board were appropriate law enforcement authorities. Section 554.002 of the Whistleblower Act provides:
(b) In this section, a report is made to an appropriate law enforcement authority if the authority is a part of a state or local governmental entity or of the federal government that the employee in good faith believes is authorized to:
(1) regulate under or enforce the law alleged to be violated in the report; or
(2) investigate or prosecute a violation of criminal law.
Tex. Gov't Code Ann. § 554.002(b) (Vernon Supp. 2004-05). The particular law violated is important to the determination whether the agency was an appropriate law enforcement agency. Tex. Dep't of Transp. v. Needham, 82 S.W.3d 314, 320 (Tex. 2002). Good faith in the context of identifying an appropriate law enforcement agency incorporates the subjective "honesty in fact" and objective reasonableness prongs of the good faith report of a violation of law. Id. at 320-21.
Concerning the memorandum to Bowers, Wyman must first demonstrate that he subjectively believed that the City Attorney's Office was an appropriate law enforcement agency to regulate or enforce violations of the Plumbing Code or to investigate or prosecute a violation of criminal law. Wyman states in his affidavit that he believed the City Attorney's Office was such an agency. He must also adduce evidence that his belief was objectively reasonable based on his experience and training. In his affidavit, Wyman states that he routinely worked with the City Attorney's Office on code enforcement matters. This evidence creates a genuine fact issue whether Wyman's experience in working with the office to regulate matters under the Plumbing Code made it objectively reasonable to believe that it was an appropriate law enforcement authority as to the Plumbing Code.
The City also argues that Wyman's memorandum to the Appeals Board did not constitute a report to an appropriate law enforcement authority. This argument is limited, however, to contending that the Appeals Board was not an appropriate law enforcement authority to regulate or enforce the City Code with respect to the Appeals Board's equivalency decision. Because the court has already concluded above as a matter of law that Wyman did not make a good faith report of a law violation regarding the Appeals Board's approval of CSST without considering fire resistance or sanitation, this argument is moot.
D
The City asserts that it is entitled to summary judgment on Wyman's Whistleblower Act claim because Wyman has adduced no evidence that the City retaliated against him because of the memoranda to Bowers and the Appeals Board. Wyman contends that he is entitled to a statutory presumption of retaliation that the City cannot rebut.
The Whistleblower Act creates a presumption of retaliation if the adverse employment action is taken within 90 days of the employee's report of a law violation. See Tex. Gov't Code Ann. § 554.004(a) (Vernon Supp. 2004-05). The City acknowledges that Wyman is entitled to the statutory presumption, but it maintains that the presumption has been rebutted.
The statutory presumption is rebutted and becomes a nullity once a defendant produces sufficient evidence to suggest that it did not take the adverse employment decision against the employee because of his reports. See Tex. AM Univ. v. Chambers, 31 S.W.3d 780, 784-85 (Tex.App. 2000, pet. denied). The Whistleblower Act does not incorporate a burden shifting framework. See Tex. Dep't of Human Servs. v. Hinds, 904 S.W.2d 629, 637 (Tex. 1995). The City incorporates arguments asserted in the context of causation in Wyman's First Amendment claim to rebut the presumption and contend that it is entitled to summary judgment on the Whistleblower Act claim. For the reasons explained supra at § III(C), the court holds that the City has rebutted the statutory presumption and that there is a genuine issue of material fact concerning defendants' motivation in terminating Wyman. This prevents summary judgment in favor of either Wyman or the City.
E
The City seeks summary judgment on the ground that it can demonstrate that, even if it considered Wyman's reports of law violations, it would have terminated him anyway for reasons unrelated to his reports. It reasserts arguments made in support of summary judgment on Wyman's First Amendment claim. The causation analysis under the Whistleblower Act is similar to that under the First Amendment claim. See Hinds, 904 S.W.2d at 635-36 (discussing approvingly the Mt. Healthy analysis and holding that "the standard of causation in whistle-blower and similar cases should be that the employee's protected conduct must be such that, without it, the employer's prohibited conduct would not have occurred when it did."). For the reasons discussed supra at § III(D), the court denies defendants' motion for summary judgment on Wyman's Whistleblower Act claim.
VII
Wyman moves to exclude the testimony by Robert Torbin ("Torbin"), Glegg, and Bowers.A
Wyman anticipates that defendants will call Torbin to provide expert testimony concerning the equivalence of CSST to steel pipe. He moves the court to exclude Torbin's testimony on the ground that defendants cannot demonstrate that Torbin's analysis is reliable, as required under Fed.R.Evid. 702. Defendants maintain that Wyman's motion is premature and that Torbin's testimony is irrrelevant to a fact at issue.
Defendants seek to introduce Torbin's testimony only if the issue of CSST equivalence is deemed relevant.
The court agrees that this motion is premature. It is not clear that Torbin's testimony will be relevant given the issues that will be in dispute at trial. In light of the possibility — if not probability — that Torbin will not be an expert witness at trial, the court need not make a pretrial ruling on this issue.
Accordingly, the court denies Wyman's motion to exclude Torbin's testimony, without prejudice to his reurging the motion no later than the pretrial conference if it appears Torbin will testify as an expert witness at trial and that he has a basis to move to exclude the testimony he intends to give.
B
Wyman also moves to exclude the testimony of Glegg and Bowers. He contends their testimony should be excluded in toto because, during their depositions, defendants asserted privileges and objections, and Glegg and Bowers refused to testify when asked about conversations with Wyman. Defendants respond that they do not intend to offer testimony by Glegg or Bowers regarding the content of any conversations with Wyman, because the conversations are protected by the attorney-client privilege and are not relevant to Sharma's motivation to terminate Wyman.
Wyman maintains that the state court addressed this issue before this case was removed by ordering witnesses to answer Wyman's questions in a sealed transcript with only defendants' counsel present. Defendants respond that they unaware of such an order, noting that it was entered before their current counsel's assuming an "active role" in the case. The court likewise has been unable to locate the order in the record. Wyman has neither attached a copy of the order to his motion to exclude nor cited where it can be found in the record, and it is not contained in the papers submitted with the notice of removal. See N.D. Tex. Civ. R. 81.1(a)(3)(C).
Wyman's motion is denied as moot to the extent that he seeks to exclude testimony by Glegg and Bowers regarding the substance of conversations with him. Wyman has not previously sought an order from this court to compel the discovery he seeks and has not demonstrated any misconduct by defendants or other circumstances that justify entirely excluding Glegg's and Bowers's testimony. for all purposes. Cf. Fed.R.Civ.P. 37(a)(2)(B) and (b)(2). The motion is therefore denied in this respect.
* * *
The court grants in part and denies in part defendants' December 31, 2003 motion for summary judgment. The court dismisses Wyman's First Amendment claim against the City, dismisses his Whistleblower Act claim against Sharma, and dismisses his Whistleblower Act claim against the City to the extent based on the September 1, 2000 memorandum to Glegg. The court denies Wyman's January 5, 2004 motion for partial summary judgment and grants his February 20, 2004 motion for leave to amend his complaint. Wyman's January 5, 2004 motion to exclude the testimony of Torbin, Glegg, and Bowers is denied.