UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-40671 Summary Calendar

VICKI LOONEY,

Plaintiff-Appellant,

VERSUS

VAN ZANDT COUNTY, TEXAS; and NANCY HROBAR,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Texas ON PETITION FOR REHEARING EN BANC (6:00-CV-482) February 4, 2002 Before DeMOSS, PARKER, and DENNIS, Circuit Judges.

Per Curiam:*

Given that no judge in regular active service has requested

that the court be polled on rehearing en banc, we will treat Nancy

Hrobar’s petition for rehearing en banc as a petition for panel

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 rehearing. Treating her petition as a petition for panel

rehearing, the petition is GRANTED. The panel’s opinion filed

January 8, 2002 is withdrawn and the following opinion is

substituted therefor.

Vicki Looney sued her former employer, Van Zandt County, Texas

(“the County”), and her former supervisor, Nancy Hrobar, for

breaching her employment contract and for firing her in violation

of the First and Fifth Amendments. The district court granted

summary judgment in favor of the appellees, finding that Ms. Hrobar

was entitled to qualified immunity and that Ms. Looney failed to

carry her evidentiary burden with regard to any of her claims.

Because we find material issues of fact regarding (1) Ms. Looney’s

First Amendment claim against Ms. Hrobar and (2) Ms. Hrobar’s

qualified immunity defense, we reverse and remand in part for

further proceedings.

I.

Vicki Looney had worked for the Van Zandt County Tax

Assessor’s Office from 1987 until June 2, 2000, when Nancy Hrobar,

the Interim Tax Assessor, fired her. At the time of her firing,

Ms. Hrobar and Ms. Looney were opponents in the November 2000

County Tax Assessor’s election.

There is a history of bad blood between Ms. Looney and Ms.

Hrobar. When the County Tax Assessor resigned in late 1999, she

left the office vacant. The Van Zandt County Commissioners’ Court

2 considered two people to fill the interim vacancy: Looney and

Hrobar. At the time, Ms. Looney was the Chief Deputy in the

Assessor/Collector’s office. Notwithstanding Looney’s experience

at the Assessor’s office, the County Commissioners’ Court voted

along party lines to have Ms. Hrobar serve as Interim Assessor.

Ms. Hrobar thus became Ms. Looney’s interim supervisor.

Ms. Looney and Ms. Hrobar’s working relationship was

contentious from day one. Ms. Looney submits that during Ms.

Hrobar’s first week as supervisor, Ms. Hrobar gave her the

ultimatum of withdrawing from the 2000 tax assessor race or losing

her job. She also presents evidence that Ms. Hrobar made it known

to employees of the Tax Assessor’s office and the community-at-

large that she was looking for reasons to fire Looney. On May 22,

2000, Ms. Hrobar demoted Ms. Looney from Chief Deputy to Deputy and

on June 2, 2000, Ms. Hrobar fired her from the tax assessor’s

office. Ms. Looney contends that Ms. Hrobar demoted and fired her

because of her membership in the Democratic party and her decision

to remain a candidate in the 2000 tax assessor race.

Ms. Hrobar denies that Ms. Looney’s political opposition to

her bid for the 2000 tax assessor race had anything to do with her

decision to demote and later fire Looney. Rather, she argues that

she fired Ms. Looney because she was insubordinate, rude, and

uncooperative. Ms. Hrobar cites several instances of Ms. Looney’s

insubordination and submits third party affidavits to corroborate

her claim that Looney was unprofessional.

3 II.

We review a grant of summary judgment de novo, applying the

same standards that governed the district court’s ruling. Conner

v. Lavaca Hosp. Dist.,

(5th Cir. 2001). We view

the evidence in the light most favorable to the party opposing the

motion, drawing all reasonable inferences in that party's favor.

See Rios v. Rossotti,

(5th Cir. 2001); Auguster

v. Vermilion Parish Sch. Bd.,

(5th Cir. 2001).

Summary judgment is appropriate where "the pleadings, depositions,

answers to interrogatories, and admissions on file, together with

affidavits, if any, show that there is no genuine issue as to any

material fact and the moving party is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v.

Catrett,

(1986).

III.

Mt. Healthy v. City School Dist. Bd. of Education,

(1977), provides the appropriate framework for analyzing a

plaintiff’s claim that her employer fired her for exercising her

First Amendment right to free expression. Under Mt. Healthy, the

plaintiff has the initial burden of demonstrating (1) that she

suffered from an adverse employment decision; (2) that her conduct

was protected by the First Amendment; and (3) that this conduct was

a “substantial” or motivating factor in her discharge.

.

If the plaintiff meets this threshold, the burden shifts to her

employer to show, by a preponderance of the evidence, a legitimate

4 reason for firing her even in the absence of this protected

conduct. The plaintiff can then refute her employer’s explanation

by showing that it is merely pretexual. See id.; Click v.

Copeland,

(5th Cir. 1992). The parties do not

dispute that Ms. Looney satisfied the first two prongs. Thus, the

issue on appeal is whether there is a material issue of fact over

whether Ms. Looney’s political opposition to Ms. Hrobar was a

motivating factor in her discharge.

The record reflects the following evidence in support of Ms.

Looney’s First Amendment claim. Her deposition testimony states

that shortly after Ms. Hrobar became the Interim Tax

Assessor/Collector, Ms. Hrobar told her that if she wanted to keep

her job, she would have to withdraw from the political race.

Affidavits from several of the tax assessor’s customers state that

she was always professional and polite in her dealings. Ms. Looney

also submitted affidavits from current and former employees of the

tax assessor’s office confirming that she acted professionally and

that she was congenial and cooperative with her co-workers.

The affidavit of Chyrrel Taylor, one of Ms. Looney’s co-

workers, also suggests that Ms. Hrobar had improper motives. Ms.

Taylor states that Ms. Hrobar actively solicited tax-assessor

customers and employees for reasons to fire Looney. Ms. Taylor’s

affidavit even states that Ms. Hrobar brought her attorneys into

the office and encouraged her employees to sign grievance

affidavits against Ms. Looney. According to Ms. Taylor, Ms. Hrobar

5 told her employees what type of grievances they should make and

promised job security in exchange for providing evidence against

Ms. Looney. When Ms. Taylor refused file a grievance, an employee

from another office asked her why she had not offered an affidavit

against Ms. Looney.

Despite this evidence, the district court found that Ms.

Looney failed to establish a causal connection between her

constitutionally protected political viewpoint and her discharge.

Because Ms. Looney had not refuted all of Ms. Hrobar’s evidence of

her insubordination and unprofessional demeanor, the court found

that Ms. Looney had not sufficiently rebutted Ms. Hrobar’s

legitimate explanation for Ms. Looney’s firing. We respectfully

disagree with that finding. Viewing the evidence in the light most

favorable to Ms. Looney, we find a material issue of fact as to

whether Ms. Looney’s political activity was a motivating factor in

her discharge. “While [Ms. Looney] must ultimately prove that her

political activity was the motivating reason for [her] discharge,

the determination of that issue turns on a genuine dispute of

material fact, and is a proper issue for trial, not for resolution

by summary judgment.” Brawner v. City of Richardson,

(5th Cir. 1988); see also Click,

(“Whether an

employee’s protected conduct was a substantial or motivating factor

in an employer’s decision to take action against the employee is a

question of fact, ordinarily rendering summary disposition

inappropriate.”). We also find a material issue of fact over

6 whether Ms. Hrobar “would have reached the same decision as to [Ms.

Looney’s employment] even in the absence of [her] protected

conduct.” Mt. Healthy,

. Based upon the evidence

that Ms. Hrobar gave Ms. Looney the ultimatum of quitting or

withdrawing from the race and that she promised job security to any

employee who provided disparaging affidavits against Ms. Looney, we

believe that reasonable jurors could find that Ms. Hrobar would not

have fired Ms. Looney had she not been Hrobar’s political opponent.

See Click,

.

IV.

We also find a material issue of fact regarding whether Ms.

Hrobar was entitled to qualified immunity. We apply a two-step

analysis to determine whether a public official is entitled to

qualified immunity. “First, we must examine whether the plaintiff

has alleged a violation of a clearly established right.” Goodson

v. City of Corpus Christi,

(5th Cir. 2000).

“Second, we must ask whether the defendants’ conduct was

objectively reasonable in light of ‘clearly established’ law at the

time of the alleged violation.”

The district court found that

even if Ms. Looney had established that her speech motivated Ms.

Hrobar’s conduct, Ms. Hrobar’s decision to fire her was not

objectively unreasonable in light of the evidence that Ms. Looney

had acted unprofessionally. We disagree.

To determine objective reasonableness for qualified immunity,

7 we consider whether a reasonable interim tax assessor would have

believed that her conduct was lawful in light of the clearly

established law involving viewpoint discrimination. See Chiu v.

Plano Indep. Sch. Dist.,

, 354 n.21 (5th Cir. 2001)

(citing Anderson v. Creighton,

(1987)). As

discussed above, viewing the facts in the light most favorable to

Ms. Looney, there is a genuine issue of fact regarding whether Ms.

Hrobar’s actions were directed at suppressing Ms. Looney’s

political viewpoint. “The law requires that qualified immunity be

denied officials who transgress those rights of which a reasonable

person would have known.”

(citing Harlow v. Fitzgerald,

(1982)). We believe that a reasonable person serving

in Ms. Hrobar’s position would know that the First Amendment

forbids her from firing or demoting Ms. Looney on the basis of her

political viewpoint. Thus, because we find a genuine issue of

material fact regarding whether Ms. Hrobar was entitled to

qualified immunity, we reverse summary judgment on that point. See

id. at 342.

V.

Ms. Looney does not challenge the district court’s rulings

with regards to (1) the County’s liability for maintaining an

unconstitutional demotion or termination policy; (2) her breach of

contract claims; or (3) her due process claims. Those claims are

therefore waived. Johnson v. Sawyer,

(5th

Cir. 1997).

8 VI.

Thus, viewing the evidence in the light most favorable to Ms.

Looney, we hold that there is a genuine issue of fact regarding

whether her political activity motivated Ms. Hrobar to demote and

fire her. We also hold that a reasonable jury could find that Ms.

Hrobar had failed to show by a preponderance of the evidence that

she would have fired Ms. Looney even in the absence of her

political activity. In light of the evidence, summary judgment was

inappropriate as to (1) Ms. Looney’s First Amendment retaliation

claim against Ms. Hrobar and (2) the issue of Ms. Hrobar’s

qualified immunity. We therefore REVERSE and REMAND the district

court’s summary judgment on these two issues and AFFIRM on the

remaining grounds.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

9