Recent Federal Fifth Circuit Cases of Interest to Cities

Note: Included cases are from October 1, 2023, through October 31, 2023.

Family Medical Leave Act: Murillo v. City of Granbury, No. 22-11163, 2023 WL 6393191 (5th Cir. Oct. 2, 2023). Murillo, a public works employee of the City of Granbury, sued the city under the Family Medical Leave Act (FMLA), for retaliation after she was terminated for failing to report to work on the first day following the end of her FMLA leave. Murillo also made a claim under 42 U.S.C. § 1983 and alleged a conspiracy to interfere with her rights. The city moved for summary judgment and the trial court granted the motion, reasoning that Murillo’s FMLA claim failed because she was no longer on FMLA leave when she was terminated, her § 1983 claim failed due to her failure to identify a constitutional violation, and her conspiracy claim failed due to her failure to show an agreement between multiple people to violate her rights. Murillo appealed only the court’s grant of summary judgment on her FMLA retaliation claim.

The appellate court reversed, holding that because Murillo had met her prima facie burden to show FMLA retaliation, the burden then shifted to the city to offer a legitimate reason for her termination. The city’s personnel manual stated that an employee would be terminated after three consecutive days of failure to appear at work, so the city’s reason for terminating Murillo on the first day after her leave ended was not a legitimate reason.

Civil Rights: Walker v. City of Houston, No. 22-20537, 2023 WL 6457926 (5th Cir. Oct. 4, 2023). Walker sued the City of Houston and several police officers under 42 U.S.C. § 1983, alleging that they used excessive force against him during an arrest. The district court granted summary judgment in favor of the city and Walker appealed.

The appellate court affirmed, holding that the force used against Walker was objectively reasonable under the circumstances because the record showed that the crime Walker was arrested for was a severe crime, Walker posed an immediate threat, and Walker was actively resisting arrest at the time the force was used.

Civil Rights: Fuhr v. City of Sherman, Tex., No. 23-40116, 2023 WL 6518159 (5th Cir. Oct. 5, 2023). Fuhr sued the City of Sherman for racial discrimination after the city hired an outside applicant, Coleman, instead of promoting Fuhr to an open supervisory position. Fuhr alleged that the city chose not to promote him because he was white, in violation of the Civil Rights Act. The trial court granted the city’s motion for summary judgment and Fuhr appealed.

The appellate court affirmed, holding that although Fuhr had met his prima facie burden for his racial discrimination claim so the burden shifted to the city to show a nonpretextual reason for choosing not to promote Fuhr, the city easily met its burden because Coleman was significantly more qualified for the position than Fuhr.

Takings Clause: Baker v. City of McKinney, Tex., 84 F.4th 378 (5th Cir. 2023). Baker sued the City of McKinney for violations of the takings clauses of the United States and Texas Constitutions after her home was severely damaged when the police used multiple tools, including explosive devices and gas grenades, to rescue a child being held hostage by an intruder inside her home. The city filed a motion to dismiss based on governmental immunity and Baker filed a motion for partial summary judgment on the matter of the city’s liability. The trial court denied the city’s motion to dismiss and granted Baker’s motion for summary judgment. A jury trial on the matter of damages followed, and a jury awarded Baker damages for her home and personal property. The city appealed both the trial court’s denial of its motion to dismiss and the trial court’s grant of Baker’s motion for summary judgment.

The appellate court reversed, holding that history and precedent established the necessity exception to the takings clauses in both state and federal law, which allows the government to damage or destroy property without compensation in the case of public emergency.

Tax Injunction Act: Harward v. City of Austin, 84 F.4th 319 (5th Cir. 2023). Harward, along with several other property owners along the shore of Lake Austin, sued the City of Austin under the due process, equal protection, takings, and ex post facto clauses of the federal Constitution, together with state law claims, seeking declarations, injunctions, and writs of mandamus following a City of Austin ordinance that (1) declared the properties to be within the city’s limited-purpose jurisdiction; (2) repealed a 1986 ordinance promising not to tax the properties until the city provided services; and (3) announced that the properties are subject to taxation regardless of whether the city provides services. In the lawsuit, the property owners alternatively sought an award of just compensation for the taking of their properties’ jurisdictional status, provision of city services, or disannexation. The trial court dismissed all the claims as barred by the Tax Injunction Act (TIA), and Harward appealed.

The appellate court affirmed in part and reversed and remanded in part, holding that: (1) the TIA did not preclude the property owner’s claim to invalidate the ordinance or alternative claims for just compensation, provision of services, or disannexation because these did not directly challenge the taxing power of the city;  (2) the TIA barred the property owners’ request for a declaration that the city’s notices to the appraisal district that the properties were in the taxing boundaries were invalid; and (3) the TIA barred the property owners’ request for a writ of mandamus directing the city to instruct the appraisal district and tax collected that the properties were in the city’s extraterritorial jurisdiction.

Sexually Oriented Businesses: Ass’n of Club Executives of Dallas, Inc. v. City of Dallas, Tex., 83 F.4th 958 (5th Cir. 2023). The owners of several sexually oriented businesses and their trade organization (SOBs) sued the City of Dallas challenging the constitutionality of a city ordinance that barred SOBs from operating between the hours of 2:00 am and 6:00 am, alleging that their free speech rights were violated because the ordinance impermissibly restricted speech. The trial court granted the SOBs request for a preliminary injunction and the city appealed.

The appellate court reversed, holding that the city was likely to show that the ordinance was designed to further a substantial government interest because it was backed by ample data and that the SOBs were unlikely to succeed on a claim that the ordinance substantially restricted speech because the ordinance left the SOBs free to operate for 20 hours a day.

Civil Rights: Dusterhoft v. City of Austin, No. 23-50313, 2023 WL 6785842 (5th Cir. Oct. 13, 2023). Dusterhoft, a City of Austin assistant police chief, sued the city and the chief of police after he was demoted and subsequently fired, alleging that he was demoted and fired as retaliation for statements alleging wrongdoing in the police department that he made during the meeting in which he was demoted. Dusterhoft claimed that the city and several city officials conspired against him and retaliated against him for exercising his First Amendment right to free speech by making the statements about the department. The city moved to dismiss both claims, the trial court granted the motion, and Dusterhoft appealed.

The appellate court affirmed, holding that because Dusterhoft was speaking as a public employee rather than a private citizen when he made the statements about the department at the private meeting that resulted in his demotion, the speech was not protected by the First Amendment and therefore his claims failed.