Ramon v. Lee, et al

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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 01-31291
PHILIP J. RAMON III,
Plaintiff-Appellant,
VERSUS
HARRY LEE, INDIVIDUALLY, AND IN THE CAPACITY OF THE SHERIFF FOR
THE PARISH OF JEFFERSON, STATE OF LOUISIANA; RICHARD RODRIGUE,
INDIVIDUALLY, AND IN THE CAPACITY OF A DEPUTY SHERIFF FOR THE
PARISH OF JEFFERSON, STATE OF LOUISIANA; AND THOMAS GORMAN,
INDIVIDUALLY, AND IN THE CAPACITY OF A DEPUTY SHERIFF FOR THE
PARISH OF JEFFERSON, STATE OF LOUISIANA,
Defendants-Appellees.
Appeal from the United States District Court
For the Eastern District of Louisiana
August 29, 2002
Before DAVIS, DeMOSS, and STEWART, Circuit Judges.
DeMOSS, Circuit Judge:
I. BACKGROUND
The plaintiff, Philip Ramon, was an officer with the Jefferson

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1 See Brady v. Maryland, 373 U.S. 83 (1963).
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Parish Sheriff’s Office (JPSO) from 1987 until Defendant Sheriff
Harry Lee discharged him in November of 1999. On July 19, 2000,
Ramon sued Lee, along with Richard Rodrigue and Thomas Gorman (two
other high-ranking JPSO officials). Ramon alleged that his
termination was illegal because it constituted retaliatory
discharge for the exercise of his right to free speech under the
First Amendment. He also pleaded defamation and intentional
infliction of emotional distress. The District Court granted the
Defendants’ motion for summary judgment on Ramon’s constitutional
claim. Specifically, the court concluded that “the plaintiff has
not met his burden of demonstrating that his speech, and not his
own misconduct, was the motivating factor for his termination.”
Because this was Ramon’s only federal claim, the District Court
also dismissed his state law claims. See Joiner v. Diamond M.
Drilling Co., 677 F.2d 1035, 1041 (5th Cir. 1982)("Generally, when
the primary federal claim has been settled or dismissed before
trial, the district court should dismiss any lingering ancillary
state law claims." Ramon appeals here. We affirm the District
Court’s judgment.
II. FACTS
The entire dispute here centers around one of Ramon’s
supervisor’s, Lieutenant Susan Rushing, destroying Brady1 evidence

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2 The Task Force was comprised of representatives of the law
enforcement agencies of the Parishes of Jefferson, St. Charles, St.
John the Baptist, and Tangiphoa, the Cities of New Orleans and
Gretna, and the FBI.
3 This date was significant because two victims had been
discovered in Louisiana in the same month that the receipt
indicated Ellwood was in Texas.
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relevant to a serial murderer investigation. Rushing and Ramon
both served on a Task Force that was created by the Federal Bureau
of Investigation (FBI) to investigate a series of murders.2 After
some investigation, the Task Force identified Russell Ellwood as a
suspect in the crimes. In August and September of 1997, members of
the Task Force created a computerized time-line containing
information about Ellwood’s whereabouts at various times. The
information was obtained from evidence seized through the execution
of a search warrant. One day, Mary Dunn, a JPSO secretary assigned
to the Task Force Office, was reviewing the information being
entered into the time-line in the presence of Rushing, Ramon, and
another officer, Detective Usey. Ms. Dunn began reading aloud from
a piece of paper that she identified as a gasoline receipt and
commented: “Texas, February 1993. How could he be in Texas and be
here?”3 Rushing took the receipt from her, tore it up, and threw
it in the trash. After witnessing this event, Ramon registered his
displeasure by leaving the room. However, he did not confront
Rushing or take steps to recover the evidence from the trash can.
III. APPLICABLE LAW

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The parties agree as to the elements of Ramon’s claim. In
Harris v. Victoria Independent School District, this Court
explained:
The Plaintiffs must satisfy four elements to recover for
a First Amendment retaliation claim. First the
Plaintiffs must suffer an adverse employment decision.
Second, the Plaintiffs’ speech must involve a matter of
public concern. Third, the Plaintiffs’ interest in
commenting on matters of public concern must outweigh the
Defendants’ interest in promoting efficiency. Fourth,
the Plaintiffs’ speech must have motivated the
Defendants’ action.
168 F.3d 216, 220 (5th Cir. 1999) (emphasis added) (citations
omitted). The District Court in this case noted that only this
fourth prong was at issue. Under this prong, once a plaintiff
shows that his conduct was constitutionally protected and that this
conduct was a “motivating factor” in his or her discharge, the
burden then shifts to the employer, which must demonstrate “that it
would have reached the same decision . . . even in the absence of
the protected conduct.” Mount Healthy City Sch. Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977).
This Court reviews summary judgments de novo, employing the
same standards as did the District Court. See Urbano v.
Continental Airlines, Inc., 138 F.3d 204, 205 (5th Cir. 1998).
Summary judgment is appropriate when, viewing the evidence in the
light most favorable to the nonmoving party, no genuine issue of
material fact exists, and the moving party is entitled to summary
judgment as a matter of law. See FED. R. CIV. P. 56©); Celotex

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Corp. v. Catrett, 477 U.S. 317, 322-24 (1986).
IV. THE PARTIES’ CONTENTIONS
Ramon asserts that he was discharged for exercising his right
to free speech. Specifically, he claims that his complaint about
Rushing’s behavior was the “motivating factor” for his discharge.
In contrast, the Defendants contend that Ramon was fired—not
for exercising his right of free speech—but rather for keeping
silent. The Defendants assert that Ramon’s conduct in watching a
colleague destroy exculpatory evidence regarding a suspected serial
killer without taking steps to recover the evidence or report the
incident was the cause of his discharge.
In response, Ramon argues that Ms. Dunn, who is covered by the
same JPSO Code of Conduct, also witnessed the destruction of the
evidence, but she was not disciplined for failing to preserve the
evidence or report Rushing’s conduct. According to Ramon, this
evidence rebuts the Defendants’ claim that he was terminated for
remaining silent about Rushing’s conduct.
V. THE DISTRICT COURT’S DECISION
Ramon testified about the destruction of the gas receipt at a
suppression hearing in the Ellwood case. The District Court’s
order here demonstrates that it relied upon Ramon’s statements
during this hearing to conclude that summary judgment was proper.

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The relevant portion of the court’s order states:
Defendants’ version of events is supported by plaintiff’s
own testimony in the Ellwood hearing. Plaintiff admitted
that he believed Lt. Rushing’s acts in destroying the gas
receipt to have been criminal. Moreover, plaintiff’s own
conduct in failing to retrieve or preserve the evidence
can be characterized as possibly obstructing justice.
Without ever having to reach the issue as to whether, and
to whom, plaintiff revealed Lt. Rushing’s misconduct,
plaintiff’s own undisputed conduct provided a proper
basis for his dismissal from the JPSO. Thus, the Court
finds that the plaintiff has not met his burden of
demonstrating that his speech, and not his own
misconduct, was the motivating factor for his
termination.
The court also rejected Ramon’s argument that the JPSO’s
refusal to fire other people over their failure to report Rushing’s
conduct demonstrated that his failure to report the conduct could
not have been the reason for his discharge. The court pointed out
that most of these individuals were not similarly situated to
Ramon in that they were not present when the evidence was destroyed
and they were not in a position, as he was, to retrieve or preserve
the evidence. In addition, the court noted that Dunn, the other
person present during the incident, was a secretary—not a law
enforcement official. Hence, she was not under a similar duty to
preserve the evidence. Accordingly, the district court concluded
that summary judgment was proper.
VI. CONCLUSION
Having reviewed the summary judgment evidence that was before
the district court, including the transcripts of Ramon’s testimony

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at the Ellwood hearing, we conclude that the district court’s
analysis is correct. Because Ramon has not carried his burden of
demonstrating that speech, rather than his own misconduct, was the
motivating factor leading to his discharge, summary judgment was
proper. Accordingly, we AFFIRM the district court’s judgment.

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