Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS: The defendants, Deputy Secretary Paul Fontenot, Sergeant John Watson, Officer Linda Clark, Officer Shirley Armstrong and Trooper Jeffrey Watts, appeal a jury verdict reached in favor of Plaintiff Gregory Johnson. The jury found that the defendants fired Johnson in violation of 42 U.S.C. �1983 and the First Amendment right to free speech. HOLDING: Vacated and remanded. The landscape of �1983 First Amendment retaliation actions shifted in 1994 with the Supreme Court’s decision in Waters v. Churchill, 511 U.S. 661 (1994) (plurality opinion). The court held that where the content of an employee’s speech is disputed, a court applying the Connick v. Myers, 461 U.S. 138 (1983), test for matters of public concern must look to the facts as the defendant reasonably found them to be rather than the facts as they actually were. In Waters, the employer was presented two widely-varying accounts of the plaintiff’s speech; the content of the speech was a matter of public concern if the plaintiff’s version was believed, but it was not a matter of public concern if the report of two other employees was believed. The court found that if the employers, after conducting a reasonable fact-finding inquiry, “really did believe [the other workers'] story, and fired [the plaintiff] because of it, they must win.” It also found that the employer (even though it might have been wrong) reasonably believed the speech was disruptive, so the balance of interests analysis also favored the employer. The court’s reasoning in Waters was based largely on its concern that government employers not be bound by strict evidentiary rules when making employment decisions. It noted that “[w]e have never held that it is a violation of the Constitution for a government employer to discharge an employee based on substantively incorrect information.” Rather, government employers, like other employers, may rely on hearsay and personal credibility determinations in deciding what was actually said. Following Waters, the court held that government employers are not required to resolve contradictory testimony in favor of the disciplined employee or to make personnel decisions through methods that mirror court procedures. Gonzales v. Dallas County, Tex., 249 F.3d 406 (5 thCir. 2001). The court therefores consider the facts as Fontenot reasonably found them to be. Fontenot properly relied on Watts’ independent investigation, since he had no reason to suspect that Watts did anything other than report what he was told. Given Clark’s, Armstrong’s and Gendusa’s denials of sexual harassment; Watts’ report stating that he thought Johnson was lying; Johnson’s admitted anger at Watson based on his demotion; and Johnson’s failure to present any evidence in his own support even when explicitly invited to do so, Fontenot reasonably found the facts to be that Johnson was lying and that he had fabricated the sexual harassment allegations. The court also considers whether Watts’ investigation was biased, because if the final decisionmaker merely “rubber stamps” an evaluation made by a subordinate, then the subordinate’s improper motive may be imputed to the decision-maker. Johnson argues that Watts was biased by his supervisor’s comment that he did not believe the allegations. Johnson presented no evidence, however, that Watts’ supervisor pressured Watts to reach any particular conclusion or that he had a history of attempting to influence Watts’ investigations. Johnson further argues that Watts’ failure to interview his potentially corroborating witness shows that Watts conducted a sham investigation calculated to find that Johnson had lied. Watts, however, was entitled to limit his investigation and to make a credibility determination against Johnson. When compared to the overwhelming evidence Watts had that Johnson fabricated the allegations, Watts’ supervisor’s comment and Watts’ failure to interview another witness do not amount to a sufficient evidentiary basis from which a jury could reasonably believe that Watts was biased by any improper motive. There is therefore no improper motive that could be imputed to Fontenot. The court finds that the balance of interests clearly weighs in favor of Fontenot. There is nothing in the record to belie a reasonable belief by Fontenot that Johnson’s allegations against his supervisor and attempts to pressure Clark and Armstrong to change their stories were disruptive of discipline, harmony, and general working relationships. As the decision-maker, Fontenot’s actions were reasonable and his reliance on Watts’ investigation and conclusions was reasonable. Likewise, given the accounts provided to Watts by the parties involved and the information gleaned by Watts, his conclusions were reasonable if not compelled. If in fact either Fontenot or Watts misjudged the situation, such misjudgment does not rise to the level of a violation of Johnson’s constitutional free speech rights. Johnson presented no evidence that Fontenot or Watts was motivated by a desire to curtail or to penalize the exercise of Johnson’s constitutionally protected rights. In such a situation, “we must presume that official action was regular and, if erroneous, can best be corrected in other ways.” Bishop v. Wood, 426 U.S. 341 (1976). OPINION: Benavides, J.; Benavides, Stewart and Dennis, J.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.