Van Ooteghem v. Gray, 654 F.2d 304 (5th Cir. 1981). · Go Syfert
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Van Ooteghem v. Gray, 654 F.2d 304 (5th Cir. 1981). Cases Citing This Book View Copy Cite
57 citation events (4 in the last 25 years) across 15 distinct courts.
Strongest positive: Gary John Van Ooteghem v. Hartsell Gray (ca5, 1985-10-29) · Strongest negative: Jerry Michael Gordon v. Doug Norman, Harold Prows, Ken Martin (85-5175), and J. Anderson (85-5186) (ca6, 1986-04-23)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 22 distinct citers.
discussed Cited "but see" Jerry Michael Gordon v. Doug Norman, Harold Prows, Ken Martin (85-5175), and J. Anderson (85-5186) (2×) also: Cited "see"
6th Cir. · 1986 · signal: but see · confidence high
But see Van Ooteghem v. Gray, 628 F.2d 488 , 495 n. 7 (5th Cir.1980), aff'd in part, vacated in part on other grounds, 654 F.2d 304 (5th Cir.1981) (en banc) (per curiam), cert. denied, 455 U.S. 909 , 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982) (serious conflict of interest could exist in future § 1983 actions in which one attorney represents both a county and a county official individually).
discussed Cited "but see" James White v. Carl Thomas
5th Cir. · 1981 · signal: but see · confidence high
But see Van Ooteghem v. Gray, 654 F.2d 304, 305-306 (5th Cir. 1981) (en banc) (The 'case was remanded to the district court to determine whether a Texas county was a local government unit and could be sued as a “person” under Section 1983.
cited Cited as authority (rule) Gary John Van Ooteghem v. Hartsell Gray
5th Cir. · 1985 · confidence medium
Van Ooteghem v. Gray, 654 F.2d 304, 305 (5th Cir.1981) (en banc), cert. denied, 455 U.S. 909 , 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982).
discussed Cited as authority (rule) Van Ooteghem v. Gray
S.D. Tex. · 1984 · confidence medium
Applying the previous findings of the district court as noted by the Fifth Circuit in Van Ooteghem v. Gray, 654 F.2d 304 at 306 (5th Cir.1981) to the principles announced in Laje at 727 it is clear that Harris County, Texas is not an agency of the State of Texas and further is not entitled to Eleventh Amendment immunity protection.
discussed Cited as authority (rule) Randy Rene Lozano v. William French Smith, Elton Faught (2×)
5th Cir. · 1983 · confidence medium
See Briscoe, 619 F.2d at 404 col. 2; Crane v. State of Texas, 534 F.Supp. 1237, 1243-45 (N.D.Tex.1982); Van Ooteghem v. Gray, 654 F.2d 304, 306 (5th Cir.1981) (en banc), cert. denied, 455 U.S. 909 , 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982); Doe v. Sullivan, 472 F.Supp. 975, 976-78 (W.D.Tex.1979) 29 In holding that there was no evidence that the Sheriff and the Commissioners Court failed to supervise their facilities and personnel, the district court emphasized appellants' failure to request that the jury be instructed as to the duty of the Sheriff and the Commissioners Court to train the deputie…
cited Cited as authority (rule) Jerry G. Allen, Cross-Appellee v. Autauga County Board of Education, Cross- Manya E. Ogle v. Autauga County Board of Education
11th Cir. · 1982 · confidence medium
Van Ooteghem v. Gray, 654 F.2d 304, 305 (5th Cir. 1981) (en banc), cert. denied, - U.S. -, 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982); Bickel v. Burkhart, 632 F.2d 1251, 1255 (5th Cir. 1980).
cited Cited as authority (rule) Edwin B. Allaire, Philip White v. Lorene L. Rogers
5th Cir. · 1981 · confidence medium
The en banc court also applied the clearly erroneous test, but it did not state any reasons for rejecting the appellants’ argument. 654 F.2d at 305.
discussed Cited "see" Smith v. Daggett County Board of Education
D. Utah · 1986 · signal: see · confidence high
See Van Ooteghem v. Gray, 628 F.2d 488 , 495 n. 7 (5th Cir.1980), on reh. 654 F.2d 304 (5th Cir.1981), cert. denied 455 U.S. 909 , 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982); Shadid v. Jackson, 521 F.Supp. 87 (E.D.Tex.1981) (nonconsentable conflict in such a case).
discussed Cited "see" ca5 1985
5th Cir. · 1985 · signal: see · confidence high
They may issue bonds, arts. 1644c-1, 1666a(c); Avery, 390 U.S. at 483 , 88 S.Ct. at 1119 , and provide a variety of public services, including airports, art. 1581d; flood control, art. 1581e; libraries, art. 1696b; and parks, art. 6081; see Avery, 390 U.S. at 484 , 88 S.Ct. at 1120 10 Our holding is not inconsistent with Van Ooteghem v. Gray, 654 F.2d 304 (5th Cir.1981) (en banc).
discussed Cited "see" Rowland v. Mad River Local School District, Montgomery County, Ohio
SCOTUS · 1985 · signal: see · confidence high
See Van Ooteghem v. Gray, 654 F. 2d 304 (CA5 1981) (en banc) (per curiam) (termination of a public employee because he reveals homosexuality and intention to speak publicly on that topic “clearly” constitutes Pickering violation).
discussed Cited "see" Smith v. City of New York
S.D.N.Y. · 1985 · signal: see · confidence high
See Van Ooteghem v. Gray, 628 F.2d 488 , 495 n. 7 (5th Cir.1980), aff'd in part, vacated in part on other grounds, 654 F.2d 304 (5th Cir.1981) (en banc) (per curiam), cert. denied, 455 U.S. 909 , 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982).
cited Cited "see" 35 Fair empl.prac.cas. 697, 35 Empl. Prac. Dec. P 34,582 Henry Irby, Cross-Appellees v. Mike Sullivan, Jr., Cross-Appellants
5th Cir. · 1984 · signal: see · confidence high
See Van Ooteghem v. Gray, 654 F.2d 304, 306 (5th Cir.1981) (en banc), cert. denied, 455 U.S. 909 , 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982).
discussed Cited "see" Gay Student Services, J.M. Minton, Keith Stewart and Patricia Wooldridge v. Texas a & M University
5th Cir. · 1984 · signal: see · confidence high
See Van Ooteghem v. Gray, 628 F.2d 488 , 493 n. 6 (5th Cir.1980) aff’d in part and remanded on other grounds, 654 F.2d 304 (1981) (en banc) (where court found that state agency discharged homosexual employee on the basis of constitutionally protected speech, new evidence indicating independent justifications for discharge was irrelevant); University of Southern Mississippi Chapter of Mississippi Civil Liberties Union v. University of Southern Mississippi, 452 F.2d 564 , 566 n. 3 (5th Cir.1971) (although District Court pointed out sua sponte additional justification for nonrecognition of stud…
discussed Cited "see" Dunton v. County Of Suffolk
unknown court · 1984 · signal: see · confidence high
See Van Ooteghem v. Gray, 628 F.2d 488 , 495 n. 7 (5th Cir.1980), aff'd in part, vacated in part on other grounds, 654 F.2d 304 (5th Cir.1981) (en banc) (per curiam), cert. denied, 455 U.S. 909 , 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982).
discussed Cited "see" Dunton v. County of Suffolk
unknown court · 1984 · signal: see · confidence high
See Van Ooteghem v. Gray, 628 F.2d 488 , 495 n. 7 (5th Cir.1980), aff'd in part, vacated in part on other grounds, 654 F.2d 304 (5th Cir.1981) (en banc) (per curiam), cert. denied, 455 U.S. 909 , 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982).
cited Cited "see" Thomas Berdin, Cross-Appellants v. John Duggan, Cross-Appellees
11th Cir. · 1983 · signal: see · confidence high
See Van Ooteghem v. Gray, 654 F.2d 304, 305 (5th Cir.1981) (en banc), cert. denied, 455 U.S. 909 , 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982). 6 .
cited Cited "see" Alfred Morris v. Washington Metropolitan Area Transit Authority
D.C. Cir. · 1983 · signal: see · confidence high
See Van Ooteghem v. Gray, 654 F.2d 304, 306 (5th Cir.1981) (en banc), cert. denied, 455 U.S. 909 , 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982).
cited Cited "see" Ezra Waters v. Clinton Chaffin, Etc.
11th Cir. · 1982 · signal: see · confidence high
See Van Ooteghem v. Gray, 654 F.2d 304, 305 (5th Cir. 1981) (en banc), cert. denied, - U.S. -, 102 S.Ct. 1255 , 71 L.Ed.2d 447 (1982); Bickel v. Burkhart, 632 F.2d at 1255 n.7.
cited Cited "see" Jimmy Lee Gray v. Eddie Lucas, Warden
5th Cir. · 1982 · signal: see · confidence high
See Van Ooteghem v. Gray, 654 F.2d 304 (5th Cir. 1981) (en banc).
discussed Cited "see" Hi-Plains Hospital v. United States (2×)
5th Cir. · 1982 · signal: see · confidence high
See Van Ooteghem v. Gray, 654 F.2d 304 (5th Cir. 1981) (en banc).
discussed Cited "see" Edward Bowen v. Charlie Watkins, Chief of Police of the City of Columbus, Mississippi, Etc. (2×) also: Cited "see, e.g."
5th Cir. · 1982 · signal: see · confidence high
See Van Ooteghem v. Gray, 5 Cir. 1981, 654 F.2d 304 (en banc), cert. denied, *983 451 U.S. 935 , 101 S.Ct. 2031 , 68 L.Ed.2d 334 .
cited Cited "see" Luis J. Laje v. R. E. Thomason General Hospital
5th Cir. · 1982 · signal: see · confidence high
See Van Ooteghem v. Gray, 654 F.2d 304, 306 (5th Cir. 1981).
Gary John Van Ooteghem, Cross
v.
Hartsell Gray, Individually and in His Capacity as Treasurer of Harris County, Texas (Henry E. Kriegel, Successor in Office), Cross
78-3711.
Court of Appeals for the Fifth Circuit.
Aug 24, 1981.
654 F.2d 304
Cited by 5 opinions  |  Published

654 F.2d 304

Gary John VAN OOTEGHEM, Plaintiff-Appellee Cross Appellant,
v.
Hartsell GRAY, Individually and in his capacity as Treasurer
of Harris County, Texas (Henry E. Kriegel,
successor in office),
Defendant-Appellant Cross Appellee.

No. 78-3711.

United States Court of Appeals,
Fifth Circuit.

August 24, 1981.

Joe Resweber, Billy E. Lee, Houston, Tex., for Hartsell Gray.

David Crump, Houston, Tex., for amicus Counties of Smith, Tarrant, et al.

J. Patrick Wiseman, Hormachea & Sauer, Larry W. Sauer, Jr., Houston, Tex., for Gary John Van Ooteghem.

Appeals from the United States District Court for the Southern District of Texas.

Before GODBOLD, Chief Judge, BROWN, AINSWORTH, CHARLES CLARK, RONEY, GEE, TJOFLAT, HILL, FAY, RUBIN, VANCE, KRAVITCH, FRANK M. JOHNSON, Jr., GARZA, HENDERSON, REAVLEY, POLITZ, HATCHETT, ANDERSON, RANDALL, TATE, SAM D. JOHNSON, THOMAS A CLARK, and WILLIAMS, Circuit Judges.

PER CURIAM:

[*~304]1

The court took this case en banc to resolve the question which divided the panel: must government regulation of constitutionally protected speech of public employees be justified by a compelling state interest? 628 F.2d 488 (5th Cir. 1980). The court en banc determines that the issue is not presented by the facts in this case. We affirm that portion of the judgment of the district court holding Van Ooteghem's constitutional right of freedom of speech was violated without reaching or expressing any view on the question which brought us en banc.

2

Under Fifth Circuit Local Rule 17, our decision to rehear the case en banc, 640 F.2d 12, vacated the panel opinion; however, the following statement of the stipulated facts is largely adopted from the panel's opinion. In January 1975, plaintiff John Van Ooteghem was hired by defendant Hartsell Gray, the Treasurer of Harris County, Texas, to serve first as Cashier Assistant County Treasurer, and later as Assistant County Treasurer. He was a nontenured employee. Van Ooteghem performed his job in a professional manner: he was recognized to be both hard-working and quite brilliant. Accordingly, Treasurer Gray treated the plaintiff with the respect due to a professional: Van Ooteghem was allowed to set his own hours and to take time off as needed.

3

On July 28, 1975, Van Ooteghem informed Gray that he was a homosexual and, shortly thereafter, related his plans to address the Commissioners Court on the subject of the civil rights of homosexuals. On July 31, 1975, Gray forwarded a letter to Van Ooteghem which purported to restrict the latter to his office between the hours of eight a. m. and twelve noon and from one p. m. until five p. m., Monday through Friday. These hours corresponded to the times during which citizens were allowed to address the Commissioners Court. The letter stated that its restrictions were intended to prevent Van Ooteghem from carrying on "political activities" during these hours. Van Ooteghem refused to sign an acknowledgement provided on the letter and his employment was terminated at the end of that day.

4

In response, Van Ooteghem filed suit, pursuant to 42 U.S.C. § 1983, alleging that he was dismissed as Assistant County Treasurer in violation of his constitutional right of free speech.

5

Van Ooteghem alleged that Gray terminated his employment because of Van Ooteghem's homosexuality and desire to speak publicly on the issue of homosexuality. Gray alleged that he lost confidence in Van Ooteghem's abilities to perform his duties as assistant treasurer for Harris County. Gray alleged that this loss of confidence was based upon Van Ooteghem's assertion that he was going to appear publicly and speak out on political issues during office hours.

6

The district court found that Van Ooteghem's wish to speak to the Commissioners Court was a substantial factor in his dismissal. That finding is not clearly erroneous. Indeed, it is compelled by the stipulated facts. Since Van Ooteghem was a nontenured employee, he was subject to discharge for any good reason, or even for no reason at all, but not for a constitutionally impermissible reason. Gray assigns as his reason for discharge loss of confidence in Van Ooteghem. However, he further asserts this lost confidence resulted solely from Van Ooteghem's declared intention to speak before the Commissioners Court during hours Gray had proscribed a proscription imposed solely to prevent such speech. Thus, the wish to exercise his first amendment right caused Van Ooteghem's dismissal.

7

The district court further concluded that Van Ooteghem's intent to exercise his right to speak was constitutionally protected. We agree. The controlling case is Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968). It provides:

8

The problem in any case is to arrive at a balance between the interests of the (employee), as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public service it performs through its employees.

9

As the district court properly found, Van Ooteghem's proposed speech neither would have significantly interfered with the operation of the Treasurer's office nor the performance by Van Ooteghem of his official duties. Pickering eschewed laying down a general standard against which all public employees' statements may be judged.

[*~305]10

Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged.

11

391 U.S. at 569, 88 S.Ct. at 1735. However, here the balance so clearly strikes in favor of allowing the citizen-employee to speak that no need exists to delineate a particular standard for testing Van Ooteghem's rights. Under any standard that could be applied we would be compelled to affirm the district court.

12

The district court found Hartsell Gray was acting in his official capacity when he improperly dismissed Van Ooteghem. Judgment for back pay and attorneys' fees was awarded against Gray in his official capacity as County Treasurer and ordered to be paid from the departmental budget of the County Treasurer's Office of Harris County, Texas.

13

The district court determined that Harris County was a local governmental unit not protected by the eleventh amendment. It based this determination on the following findings:

14

A county is essentially a local governing unit with local rather than statewide constituents, local rather than state officials, local rather than state taxes, and local rather than state treasury funds. The judgment in this case would be satisfied from the county treasury which funds constitute a totally separate entity from Texas state treasury monies. There is no connection between Harris County and the state of Texas which would make the state of Texas the real party in interest in this case.

15

Briefs before us urge that the district court erred in failing to recognize that Texas counties are unique among similar state governmental units. It is contended that, unlike counties in most states and unlike municipalities in Texas, Texas counties are agencies or departments of the state. Because the extensive arguments raised here on this sensitive subject either were not addressed to or were not dealt with by the district court, this en banc court has determined to pretermit the issue and remand it to the district court for reconsideration and resolution anew.

16

The district court also determined that, under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), Harris County, as a local governmental unit, could be sued as a "person" under 42 U.S.C. § 1983. Id. 436 U.S. at 690, 98 S.Ct. at 2035-36. Since this determination is dependent upon the same reasoning which controls the validity of the district court's determination concerning the eleventh amendment status of Harris County, Texas, we similarly pretermit any decision here and remand the issue for reconsideration in light of further proceedings in the district court.

17

The district court did not expressly rule on whether Gray's action in dismissing Van Ooteghem was pursuant to "official policy" of the county government such as would render the county government liable for back pay and attorneys' fees if it was a "person" under Monell and did not enjoy eleventh amendment protection. This, too, is a significant issue in the context of this case and is an issue which this en banc court declines to reach or rule on without additional factual guidance and an express determination by the district court.

18

Finally, as the panel opinion pointed out, the district court did not make specific findings on the attorneys' fee awarded as required by Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir. 1974). This matter also requires a remand.

19

The judgment appealed from is vacated and the cause is remanded to the district court for further proceedings not inconsistent with this opinion. We intimate no views on the matters remanded for reconsideration.

[*~306]20

AFFIRMED IN PART AND, IN PART, VACATED AND REMANDED.