Civil Action No. 3:04-CV-2422-M.
January 25, 2005
MEMORANDUM OPINION AND ORDER
Defendant City of Balch Springs, Texas ("Balch Springs") removed Plaintiff's claims to this Court on November 10, 2004. Defendant asserts that the action is subject to the Court's federal question jurisdiction under 28 U.S.C. §§ 1331, 1441(b) (2004). On November 18, 2004, Plaintiff filed a Motion to Remand and Request for Costs. For the following reasons, the Court is of the opinion that Plaintiff's Motion to Remand and Request for Costs should be DENIED.
Plaintiff Sandy Arnold ("Arnold") was hired by Balch Springs, as a court clerk, in October of 2002. In August of 2004, Arnold was questioned by the Equal Employment Opportunity Commission ("EEOC") regarding a complaint that her supervisor had lodged against a city council member. Arnold alleges that her supervisor instructed her to make untrue statements to the EEOC. When Arnold refused to do so, she claims her supervisor "began a campaign of harassment, retaliation and terror".
Arnold was terminated on September 14, 2004. She alleges she was terminated in retaliation for her refusing to make untrue statements to the EEOC, and for refusing to dismiss citations that had been issued by local police officers to her supervisor's friends and family. Arnold filed suit in state court against Balch Springs, asserting five causes of action: (1) retaliatory discharge in violation of Tex. Lab. Code 21.055 (Vernon 2004), (2) retaliation in "violation of First Amendment rights of the United States Constitution and Article 1, Section 19 of Texas Constitution", (3) intentional infliction of emotional distress, (4) libel/slander, and (5) defamation. Balch Springs timely filed a Notice of Removal, arguing that Arnold's free speech retaliation claim gives rise to federal question jurisdiction.
In her Motion to Remand, Arnold states that her citation to Article 1, Section 19 of the Texas Constitution is a typographical error, and that she intended to reference Article 1, Section 8.
Balch Springs, as the party seeking to remove the case to federal court, has the burden of proving a basis for federal subject matter jurisdiction. Frank v. Bear Stearns Co., 128 F.3d 919, 922 (5th Cir. 1997). Under 28 U.S.C. § 1441(b), a defendant may remove a state court action to federal court if the plaintiff asserts a claim arising under the Constitution, treaties or laws of the United States. An action is subject to removal where the plaintiff either asserts a claim expressly created by federal law, or where she asserts a state-law claim in which: (1) a federal right is an essential element of the claim, (2) interpretation of the federal right is necessary to resolve the case, and (3) the question of federal law is substantial. See Howery v. Allstate Ins. Co., 243 F.3d 912, 917 (5th Cir. 2001). The removal statute is strictly construed, and "any doubts concerning removal must be resolved against removal and in favor of remanding the case back to state court." Staton v. Wells Fargo Bank, N.A., 192 F. Supp.2d 681, 682 (N.D. Tex. 2002); Willy v. Coastal Corp., 855 F.2d 1160, 1164 (5th Cir. 1988).
To determine whether it has subject matter jurisdiction to adjudicate Arnold's claims, the Court must look to the text of her Petition as it existed at the time the notice of removal was filed and the case sought entry into the federal system. Metro Ford Truck Sales, Inc. v. Ford Motor Co., 145 F.3d 320, 326 (5th Cir. 1998) ; see also Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 809 (1986) (federal subject matter jurisdiction cannot be sustained on a theory the plaintiff has not advanced in her Petition). Arnold's Petition states, in relevant part:
Defendant has retaliated against Plaintiff on account of Plaintiff's truthful statement given to the EEOC in violation of Plaintiff's exercise of the rights of free speech guaranteed by the First Amendment of the United States Constitution and Article 1 Section 19 of the Texas Constitution . . . [T]he actions of Creamer herein represent official policy of the City of Balch Springs, Texas, and that official policy has denied the Plaintiff, for the reasons previously stated, her constitutional rights to free speech under the laws of the First Amendment to the United States Constitution and Article 1, Section 19 of the Texas Constitution, thus making the Defendant responsible for the damages and injuries to the Plaintiff herein.
Arnold argues that her Petition was improperly removed to this Court because the language of her Petition asserts a state-law claim for free speech retaliation, and the claim does not require the resolution of a substantial question of federal law. The conduct alleged in her Petition is potentially actionable under both federal and state law. Thus, the Court must give the Petition a "fair reading" to determine the jurisdictional effect of Arnold's claims. Howery, 243 F.3d at 917-918; Hildebrand v. Honeywell, Inc., 622 F.2d 179, 181 (5th Cir. 1980) (the Court must read the Complaint liberally and determine whether the facts therein justify federal subject matter jurisdiction).
In her Motion to Remand, Arnold asserts that Balch Springs "apparently concedes that Plaintiff's claims are not created by federal law," and she devotes most of her Brief to the question of whether a state-law free speech retaliation claim poses a federal question. Plaintiff's assertion regarding Defendant's position is incorrect. In its Notice of Removal, Defendant states "the Plaintiff clearly alleges a claim in which she seeks recovery under federal law . . . for allegedly retaliating against her for exercising rights secured to her under the First Amendment to the United States Constitution." Thus, the Court will consider both possible grounds for asserting federal subject matter jurisdiction over Arnold's claims.
Under 42 U.S.C. § 1983 (2004), a government employee may pursue a private right of action against her employer in cases where the employer retaliates against her on the basis of her exercise of rights guaranteed under the First Amendment to the United States Constitution. See Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997). To state a free speech retaliation claim under § 1983, the plaintiff must prove: (1) she suffered an adverse employment decision, (2) her speech involved a matter of public concern, (3) her interest in commenting on matters of public concern outweighed the defendant's interest in promoting efficiency, and (4) her speech motivated the defendant's action. Teague v. City of Flower Mound, Texas, 179 F.3d 377, 380 (5th Cir. 1999). She must also demonstrate the retaliation was committed by someone acting under color of state law. McKinney v. Irving Independent School Dist., 309 F.3d 308, 312 (5th Cir. 2002).
Texas law provides an analogous remedy for violations of state constitutional rights, but the relief available to plaintiffs is more limited than the federal remedy. Although government employees in Texas have a common law right to sue their employers for retaliation that is motivated by their exercise of free speech rights under Article 1, Section 8 of the Texas Constitution, such claims are limited to injunctive relief. See City of Beaumont v. Bouillion, 896 S.W.2d 143, 148 (Tex. 1995). There is little case law addressing the free speech retaliation cause of action under the Texas Constitution. The Fifth Circuit and at least one state court have indicated that these claims are governed by federal First Amendment precedents. See Finch v. Fort Bend Independent School Dist., 333 F.3d 555, 563 (5th Cir. 2003); Brelsford v. University of Tex. Health Science Ctr., 1993 WL 15192, at *2-3 (Tex.App.-Dallas 1993, no writ).
The Court concludes that the plain language in Arnold's Petition asserts a federal claim under 42 U.S.C. § 1983. Arnold expressly accuses Defendant of retaliating against her on account of her exercise of "her constitutional rights to free speech under the laws of the First Amendment to the United States Constitution," and she seeks to hold Defendant "responsible for the damages and injuries" she incurred due to the alleged retaliation. As Arnold admits, damages are unavailable for claims of free speech retaliation arising under the Texas Constitution. See City of Beaumont, 896 S.W.2d at 148. So far as the Court knows, the only cause of action in which a plaintiff may recover damages for free speech retaliation is the federal claim arising under § 1983. Thus, the Court cannot give full effect to the text of her Petition without interpreting her claim as one arising under federal law.
It is of no aid to Arnold if, as she contends in her Motion to Remand, she did not intend her Petition to assert a federal claim. A plaintiff may preclude federal subject matter jurisdiction by electing in her petition to rely exclusively on state law. See Willy, 855 F.2d at 1165. However, Arnold did not make such an election. Her Petition expressly states that her intentional infliction of emotional distress claim, her libel/slander claim and her defamation claim are brought "pursuant to Texas State law", but it includes no similar limitation with respect to her free speech retaliation claim. By alleging that Defendant retaliated against her on account of her exercise of her rights under the United States Constitution, and by alleging that Defendant was acting under color of state law, as a matter of law, Arnold has stated a § 1983 claim. See, e.g., Brawner v. City of Richardson, Texas, 855 F.2d 187, 191-92 (5th Cir. 1988) ("[t]he disclosure of misbehavior by public officials is a matter of public interest and therefore deserves constitutional protection . . .").
Arnold argues that remand is nevertheless required because the concurrent state and federal issues presented in her free speech retaliation claim are "alternative theories of recovery". She claims her state-law free speech retaliation claim renders moot the potential federal question raised by her reference to the First Amendment. See Willy, 855 F.2d at 1160. (the court remanded plaintiff's state-law wrongful discharge claim, because the plaintiff asserted two alternate bases for recovering against the defendant, and disposition based on the state ground would have mooted the federal ground). Arnold's argument is misplaced. Willy and its progeny direct the Court to remand cases in which a plaintiff advances two alternative theories of recovery with respect to a single cause of action, and one of those theories is a potentially determinative issue of state law. See Willy, 855 F.2d at 1160. Arnold's Petition, in contrast, implicates a distinct federal cause of action and a distinct state-law cause of action. As Arnold herself admits, the state-law cause of action for free speech retaliation involves materially different rights and affords plaintiffs materially different remedies than the analogous federal cause of action. See Carpenter v. Wichita Falls I.S.D. 44 F.3d 362, 367 (5th Cir. 1995). Thus, the federal and state issues in Arnold's Petition are not "alternative theories of recovery", and the Court may exercise federal subject matter jurisdiction over Arnold's claims.
Defendant has satisfied its burden of proving that Arnold's Petition asserts a claim for free speech retaliation under 42 U.S.C. § 1983. Therefore, this action is properly before the Court. 28 U.S.C. § 1441(b). Plaintiff's Motion to Remand and Request for Costs are hereby DENIED.