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Qualified Immunity


Case citation:   Cutlerv. Stephen F. Austin State University     F.3d     , 2014 WL 4548549 (5th  Cir. 2014).

Summary:  In 2007, Christian Cutler became Director of Art Galleries at Stephen F. Austin State University, a public university located in Nacogdoches, Texas. The job required Cutler to oversee the planning and “execution of exhibition and other programs that support the mission of the School of Art, the University, and the larger East Texas arts community.” The job’s responsibilities included maintaining good public relations, coordinating special events with other arts and cultural groups, serving as liaison between the University and the larger arts community, and planning the annual calendar of exhibitions.

According to Cutler, sometime in 2010, a member of Representative Louie Gohmert’s staff called Cutler to invite him to judge a high school art exhibition and contest in Tyler, Texas, hosted by the representative. Cutler recalls the conversation being “very vague” and the staff member agreed to provide more information. When Cutler did not hear from Rep. Gohmert’s office, he researched Rep. Gohmert on the Internet. Cutler formed a negative impression of Rep. Gohmert after reading his widely publicized statements and concluded that he would decline Rep. Gohmert’s offer when he next spoke to the staff member. According to Cutler, in early September 2010, Cutler again spoke with Rep. Gohmert’s staff to say he was no longer interested in jurying Rep. Gohmert’s art show. In the course of explaining his rejection, Cutler explained his impression that Rep. Gohmert was a fear monger with whom Cutler did not want to be associated.

Shortly thereafter, Rep. Gohmert sent a letter in response to the rejection, copying University President Dr. Baker Pattillo. The letter expressed disappointment that Cutler would “not host the Congressional High School Art Competition this fall because you did not ‘want to be involved in any way’ with me,” and informed Cutler that “[w]e will not bother you in the future” with an invitation to host the event.  Following an investigation, Cutler was offered the opportunity to resign and resigned immediately.

On October 14, 2011, Cutler sued the university president, the provost, and his direct supervisor under 42 U.S.C. § 1983, alleging retaliation for the exercise of protected speech in violation of the First Amendment. The university officials requesting judgment in their favor prior to trial, asserting qualified immunity. The district court denied the request.  The university officials filed an immediate, pretrial appeal to the Fifth Circuit Court of Appeals, arguing that qualified immunity protected them from the suit.

Ruling:  The appeals court held that the university officials were not entitled to dismissal based on the defense of qualified immunity. To overcome an official’s qualified immunity defense, a plaintiff must show that the evidence, viewed in the light most favorable to him, is sufficient to establish a genuine dispute (1) that the official violated a statutory or constitutional right, and (2) that the right was “clearly established” at the time of the challenged conduct. “[T]he First Amendment protects a public employee’s right, in certain circumstances, to speak as a citizen addressing matters of public concern.”  Generally, “[a]ctivities undertaken in the course of performing one’s job are activities pursuant to official duties,” and are not protected by the First Amendment  That was not the case here.  Assuming that Cutler’s account of his conversations with Rep. Gohmert’s office was credible, Cutler’s speech was made externally to a staff member of an “elected representative[ ] of the people” allegedly about participating in an event that was not within his job requirements.  Cutler spoke about concerns entirely unrelated to his job and from a perspective that did not depend on his job as a university employee, but rather emanated from his views as a citizen.   Therefore, reasonable officials in the defendants’ position should have known that Cutler’s speech was protected as the speech of a citizen and that their decision to terminate Cutler on the basis of that citizen speech would violate Cutler’s First Amendment right.

Next, the defendants argued that their investigation of Cutler’s actions was reasonable and, therefore, qualified immunity still barred the suit.  According to the Fifth Circuit, a reasonable investigation may include (1) interviewing those who complained about the speech, (2) questioning other employees who witnessed the conversation for corroboration, and (3) most significantly, questioning the employee whose speech was at issue. Reasonableness of an investigation “depends in part on an investigation’s thoroughness and typically results from some formal process for reviewing evidence and weighing disputed claims.”  In this case, the trial court found facts to suggest the University’s investigation was pretextual. The defendants could not be said to be acting in good faith on the investigation, if, as the district court found, officials had already concluded that the University should fire Cutler, before they had even spoken with Cutler. Evidence also suggested that Cutler’s supervisor formed his termination decision based on past reports of Cutler’s interactions with staff unrelated to his communications to Rep. Gohmert’s office.  Thus, at this stage of the litigation, the Fifth Circuit held that the University officials were not entitled to qualified immunity with respect to Cutler’s First Amendment retaliation claims.

Comments: The University employees did not deny that Cutler had been fired based on his speech.   The issues were whether Cutler’s speech was made as a private citizen on a matter of public concern and whether the University’s investigation of his speech was reasonable, even if it ended in the wrong result.


Tort Claims Act


Case citation:  Tejano Center for Community Concerns, Inc. v. Olvera, 2014 WL 4402210 (Tex. App. – Corpus Christi 2014) (unpublished).

Summary:  Lizbeth Olvera attended a charter school operated by the Tejano Center for Community Concerns.  Olvera sustained injuries when she fell while riding on one of the school’s buses. According to Olvera’s suit, the school’s bus driver asked Lizbeth to take attendance while the bus was in motion and while the bus floors were wet and slippery.  The lawsuit alleged that Lizbeth was standing in the bus aisle when the driver unexpectedly braked, causing Lizbeth to fall and fracture her arm.  According to the suit, the driver was negligent because he “failed to keep a proper lookout” for Lizbeth’s safety; “failed to warn” her of “the danger presented by having a child standing while the bus was in motion”; placed Lizbeth in a position of peril; and failed “to maintain the floor of the school bus in a reasonably safe condition.”  The school filed a plea to the jurisdiction asserting immunity from suit, but the trial court denied the school’s plea to the jurisdiction.  The school appealed.

Ruling:   The appeals court affirmed the denial of the district’s plea to the jurisdiction.  Governmental immunity protects political subdivisions of the State, such as public school districts, from lawsuits for money damages.   Open enrollment charter schools are “local governmental entities” also entitled to governmental immunity.  The Texas Tort Claims Act provides a limited waiver of governmental immunity for school districts in the negligent “operation or use” of a motor vehicle.   Operation generally refers to “doing or performing of practical work.”   “Use” means “to put or bring into action or service; to employ for or apply to a given purpose.”  Waiver of immunity will not occur when the injury stems from the direction, control, or supervision of students.  In addition, immunity is not waived for defects of school-owned premises.

Here the school argued that governmental immunity had not been waived because the student was not injured as a result of the operation or use of the bus.  Instead, according to the school, the case involved the supervision of children and a premises defect resulting from the wet floor of the bus.

The appeals court disagreed.   Olvera’s lawsuit alleged that the bus driver was negligent for abruptly braking the school bus (1) after having directed Lizbeth to take attendance, (2) while the bus was in motion, and (3) while the floors were wet and slippery. It was the combination of the braking, wet floor, and instruction to take attendance that allegedly caused Lizbeth’s fall and injury. Unlike the cases in which a bus was merely the location of an injury or the cases in which an injury resulted from the inadequate supervision of the students, Olvera’s suit, construed liberally, challenged the manner in which the bus was used.  The appeals court also determined that the school had received proper notice of the suit within six months of the injuries, as required by the Tort Claims Act.  The appeals court affirmed the decision denying governmental immunity to the charter school.

Comments:  These cases analyzing governmental immunity for the use and operation of a school bus turn on the specific facts as alleged in the lawsuit.  The student in this case alleged that the bus was used improperly, resulting in her injury.  Thus, governmental immunity was waived.  The following case is a different story.



Case citation:  Houston ISD v. Perx, 2014 WL 4262198 (Tex. App. – Houston [14th  Dist.] 2014).

Summary:  WRRX was a special-needs student attending elementary school in the Houston Independent School District. To travel to and from school, WRRX rode a district school bus. In August 2011, PERX, as mother of WRRX, was contacted by the school and informed that WRRX had been sexually assaulted by two other students while on the bus. Soon after, PERX learned from WRRX that other similar assaults occurred in the days leading up to the complained-of assault.

PERX filed suit against the district, seeking damages and alleging various negligent acts and omissions that proximately caused WRRX’s personal injury. The district moved to dismiss the case by filing a plea to the jurisdiction.

According to the district, pursuant to the Texas Tort Claims Act, it was not liable for WRRX’s personal injury because the injury did not arise from the operation or use of a motor-driven vehicle. In response, PERX claimed that the sexual assault was caused by various failures of the bus driver which amounted to use of a motor-driven vehicle. Pertinent here, PERX contended that the failure of the district to use a security camera on the bus, and review its footage in the days leading up to the assault, constituted the operation of a motor-driven vehicle which caused the injury to WRRX.  The trial court denied HISD’s plea to the jurisdiction, and the district filed an immediate, pretrial appeal. The main issue on appeal was whether a sexual assault arose from the failure to operate a security camera on the district bus, thus, waiving governmental immunity under the Texas Tort Claims Act.

Ruling:  The appeals court held that the failure to use security cameras and review video footage did not waive the district’s governmental immunity.  The parties disputed whether the failure to operate the security camera on the bus, and the failure to review the footage, constituted the operation or use of a motor-driven vehicle. But even if the court assumed that not operating a security camera constituted the “operation or use of a motor-driven vehicle,” the court still had to determine whether the injury to WRRX “arose from” that operation or use.

According to the appeals court, “arises from,” as it is used in the statute, requires a connection between the injury and the operation or use of the vehicle.  This requires more than mere involvement of the property. The operation or use of a motor vehicle “does not cause injury if it does no more than furnish the condition that makes the injury possible.”  PERX contended that the failure to operate the security camera, and the failure to review its footage, caused WRRX’s injury.  According to the suit, in the days before the assault, the security camera was broken and failed to record footage of other alleged assaults on WRRX. Had the camera been operable, PERX asserts, the assailants would have been apprehended before the assault at issue here, and WRRX would not have suffered injury.

PERX’s allegations did not demonstrate that WRRX’s injury arose from the operation of the school bus. PERX’s pleadings only speculated that WRRX would not have sustained injury if the security cameras had been on. Such a speculative allegation is not sufficient to demonstrate that the bus driver’s failure to operate the security camera actually caused WRRX’s injury.  At most, the failure to operate the cameras only furnished a condition which made the injury possible.  Because the nexus between the injury and the use of the motor vehicle in this case involved no more than the mere involvement of the security camera, WRRX’s injury in this case did not arise from the failure to operate and monitor the camera.   The appeals court rendered judgment dismissing the claims against HISD for lack of subject matter jurisdiction.

Comments:  This case shows that the use or misuse of the bus must actually cause the injury in question.  The allegations in this case trying to establish the requisite connection between the use of the bus and the injury were too speculative, according to the court of appeals.  As a result, governmental immunity barred the suit.