First Amendment retaliation claim in Texas

2025Scott v. Godwin, 147 S.W.3d 609, 616 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.) (citing Serna v. City of San Antonio, 244 F.3d 479, 482 (5th Cir. 2001)).

2016See Scott, 147 S.W.3d at 616 (showing applicability of qualified immunity to a prisoner’s First Amendment retaliation claim); Umar v. Scott, 991 S.W.2d 512, 517 (Tex. App.—Fort Worth 1999, no pet.) (same as to a prisoner’s First Amendment free exercise of religion claim); Neimes v. Ta, 985 S.W.2d 132, 141 (Tex. App.—San Antonio 1998, pet. dism'd by agr.) (same as to a detainee’s Eighth Amendment cruel and unusual punishment claim); see also 42 U.S.C.A. § 1983 (West, Westlaw through P.L. 114-143).

2025Scott v. Godwin, 147 S.W.3d 609, 616 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.) (citing Serna v. City of San Antonio, 244 F.3d 479, 482 (5th Cir. 2001)).

2004Serna v. City of San Antonio, 244 F.3d 479, 482 (5th Cir.2001). a.

2021See Nairn v. Killeen ISD, 366 S.W.3d 229, 244 (Tex. App.—El Paso 2012, no pet.) (“An adverse employment action is one that a reasonable employee would find to be ‘materially adverse,’ i.e., ‘the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination’ under federal law.” (citing Burlington, 548 U.S. at 57 , 126 S. Ct. at 2409 )).

2016See Naim, 366 S.W.3d at 244 .

2025Even if Wilkinson had pled a valid free speech claim against a proper defendant—which he has not—Wilkinson cannot demonstrate the first element in a First Amendment retaliation analysis and therefore cannot establish a viable claim.6 “The First Amendment protects public employees against retaliation for the exercise of their free-speech rights under some circumstances.” Guillaume v. City of Greenville, 247 S.W.3d 457, 463 (Tex. App.—Dallas 2008, no pet.) (citing Garcetti v. Ceballos, 547 U.S. 410 , 126 S.Ct. 1951, 1957 (2006)).

2025Even if Wilkinson had pled a valid free speech claim against a proper defendant—which he has not—Wilkinson cannot demonstrate the first element in a First Amendment retaliation analysis and therefore cannot establish a viable claim.6 “The First Amendment protects public employees against retaliation for the exercise of their free-speech rights under some circumstances.” Guillaume v. City of Greenville, 247 S.W.3d 457, 463 (Tex. App.—Dallas 2008, no pet.) (citing Garcetti v. Ceballos, 547 U.S. 410 , 126 S.Ct. 1951, 1957 (2006)).

2025If a plaintiff makes a sufficient prima facie showing of a First Amendment retaliation claim, “the defendant must prove by a preponderance of the evidence that, regardless of the protected conduct, it would have taken the same action against the plaintiff.” Martinez v. Tex. Dep't of Criminal Justice, 300 F.3d 567, 576 (5th Cir. 2002) (citation omitted). “[A]n adverse employment action requires a significant change in employment status.” Esparza v. Univ. of Tex. at El Paso, 471 S.W.3d 903, 909 (Tex. App.— El Paso 2015 , no pet.) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (199

2025A First Amendment retaliation claim has four (4) elements: (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the employee's interest in commenting on matters of public concern outweighs the 6 As Wilkinson has not demonstrated “any arguments based on the text, history, or purpose of [Article 1], Section 8 [of the Texas Constitution] that it provides them any greater protection in this context than that provided by the First Amendment, [the Court] may rely upon persuasive authorities applying free-speech protections under both the federal and Texas constituti

2025A First Amendment retaliation claim has four (4) elements: (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the employee's interest in commenting on matters of public concern outweighs the 6 As Wilkinson has not demonstrated “any arguments based on the text, history, or purpose of [Article 1], Section 8 [of the Texas Constitution] that it provides them any greater protection in this context than that provided by the First Amendment, [the Court] may rely upon persuasive authorities applying free-speech protections under both the federal and Texas constituti

2025If a plaintiff makes a sufficient prima facie showing of a First Amendment retaliation claim, “the defendant must prove by a preponderance of the evidence that, regardless of the protected conduct, it would have taken the same action against the plaintiff.” Martinez v. Tex. Dep't of Criminal Justice, 300 F.3d 567, 576 (5th Cir. 2002) (citation omitted). “[A]n adverse employment action requires a significant change in employment status.” Esparza v. Univ. of Tex. at El Paso, 471 S.W.3d 903, 909 (Tex. App.— El Paso 2015 , no pet.) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (199

2025A First Amendment retaliation claim has four (4) elements: (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the employee's interest in commenting on matters of public concern outweighs the 6 As Wilkinson has not demonstrated “any arguments based on the text, history, or purpose of [Article 1], Section 8 [of the Texas Constitution] that it provides them any greater protection in this context than that provided by the First Amendment, [the Court] may rely upon persuasive authorities applying free-speech protections under both the federal and Texas constituti

2025A First Amendment retaliation claim has four (4) elements: (1) an adverse employment action; (2) speech involving a matter of public concern; (3) the employee's interest in commenting on matters of public concern outweighs the 6 As Wilkinson has not demonstrated “any arguments based on the text, history, or purpose of [Article 1], Section 8 [of the Texas Constitution] that it provides them any greater protection in this context than that provided by the First Amendment, [the Court] may rely upon persuasive authorities applying free-speech protections under both the federal and Texas constituti

2025Even if Wilkinson had pled a valid free speech claim against a proper defendant—which he has not—Wilkinson cannot demonstrate the first element in a First Amendment retaliation analysis and therefore cannot establish a viable claim.6 “The First Amendment protects public employees against retaliation for the exercise of their free-speech rights under some circumstances.” Guillaume v. City of Greenville, 247 S.W.3d 457, 463 (Tex. App.—Dallas 2008, no pet.) (citing Garcetti v. Ceballos, 547 U.S. 410 , 126 S.Ct. 1951, 1957 (2006)).

2025If a plaintiff makes a sufficient prima facie showing of a First Amendment retaliation claim, “the defendant must prove by a preponderance of the evidence that, regardless of the protected conduct, it would have taken the same action against the plaintiff.” Martinez v. Tex. Dep't of Criminal Justice, 300 F.3d 567, 576 (5th Cir. 2002) (citation omitted). “[A]n adverse employment action requires a significant change in employment status.” Esparza v. Univ. of Tex. at El Paso, 471 S.W.3d 903, 909 (Tex. App.— El Paso 2015 , no pet.) (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (199

2021See Nairn v. Killeen ISD, 366 S.W.3d 229, 244 (Tex. App.—El Paso 2012, no pet.) (“An adverse employment action is one that a reasonable employee would find to be ‘materially adverse,’ i.e., ‘the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination’ under federal law.” (citing Burlington, 548 U.S. at 57 , 126 S. Ct. at 2409 )).

2021See Nairn v. Killeen ISD, 366 S.W.3d 229, 244 (Tex. App.—El Paso 2012, no pet.) (“An adverse employment action is one that a reasonable employee would find to be ‘materially adverse,’ i.e., ‘the employer’s actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination’ under federal law.” (citing Burlington, 548 U.S. at 57 , 126 S. Ct. at 2409 )).

2021Corp. v. Toennies, 47 S.W.3d 473, 478 (Tex. 2001). 13 Though not cited by Appellants, one Texas case from the El Paso Court of Appeals holds—without analysis—that the material-adversity standard applies to a First Amendment retaliation claim.

2021See Zelnik v. Fashion Inst. of Tech., 464 F.3d 217 , 225–26 (2d Cir. 2006) (stating that “[i]n the context of a First Amendment retaliation claim, we have held that ‘[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action,’” and that in this context, “[a]dverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand”); Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (defining adverse action to include “discharge,

2021See Zelnik v. Fashion Inst. of Tech., 464 F.3d 217 , 225–26 (2d Cir. 2006) (stating that “[i]n the context of a First Amendment retaliation claim, we have held that ‘[o]nly retaliatory conduct that would deter a similarly situated individual of ordinary firmness from exercising his or her constitutional rights constitutes an adverse action,’” and that in this context, “[a]dverse employment actions include discharge, refusal to hire, refusal to promote, demotion, reduction in pay, and reprimand”); Morris v. Lindau, 196 F.3d 102, 110 (2d Cir. 1999) (defining adverse action to include “discharge,

2016See, e.g., Juarez v. Aguilar, 666 F.3d 325, 332 (5th Cir.2011).

2016See Scott, 147 S.W.3d at 616 (showing applicability of qualified immunity to a prisoner’s First Amendment retaliation claim); Umar v. Scott, 991 S.W.2d 512, 517 (Tex. App.—Fort Worth 1999, no pet.) (same as to a prisoner’s First Amendment free exercise of religion claim); Neimes v. Ta, 985 S.W.2d 132, 141 (Tex. App.—San Antonio 1998, pet. dism'd by agr.) (same as to a detainee’s Eighth Amendment cruel and unusual punishment claim); see also 42 U.S.C.A. § 1983 (West, Westlaw through P.L. 114-143).

2016See Scott, 147 S.W.3d at 616 (showing applicability of qualified immunity to a prisoner’s First Amendment retaliation claim); Umar v. Scott, 991 S.W.2d 512, 517 (Tex. App.—Fort Worth 1999, no pet.) (same as to a prisoner’s First Amendment free exercise of religion claim); Neimes v. Ta, 985 S.W.2d 132, 141 (Tex. App.—San Antonio 1998, pet. dism'd by agr.) (same as to a detainee’s Eighth Amendment cruel and unusual punishment claim); see also 42 U.S.C.A. § 1983 (West, Westlaw through P.L. 114-143).

2015See Connick v. Myers, 461 U.S. 138 , 148 7 The Fifth Circuit has also articulated the elements for a First Amendment retaliation claim pertaining to speech to include a four-part, rather than simply a three-part, test. “[A] First Amendment retaliation claim in the employment context has four elements: (1) the plaintiff suffered an adverse employment decision, (2) the plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s interest in speaking outweighed the governmental defendant’s interest in promoting efficiency, and (4) the protected speech motivated the defendant’s cond

2015See Connick v. Myers, 461 U.S. 138 , 148 7 The Fifth Circuit has also articulated the elements for a First Amendment retaliation claim pertaining to speech to include a four-part, rather than simply a three-part, test. “[A] First Amendment retaliation claim in the employment context has four elements: (1) the plaintiff suffered an adverse employment decision, (2) the plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s interest in speaking outweighed the governmental defendant’s interest in promoting efficiency, and (4) the protected speech motivated the defendant’s cond

2015See Jordan v. Ector Cnty., 516 F.3d 290, 295 (5th Cir. 2008).7 Whether speech or an activity is protected is a question of law.

2015DePree v. Saunders, 588 F.3d 282, 286-87 (5th Cir. 2009), cert. dismissed, 130 S. Ct. 3450 (2010).

2015Justice, 95 S.W.3d 676, 681 (Tex. App.— Houston [1st Dist.] 2002, no pet.) (looking to summary judgment practice for guidance in reviewing pleas to jurisdiction based on multiple grounds). 15 In their briefs on appeal, both parties look to federal decisions addressing the elements of a First Amendment retaliation claim for guidance on the elements of Ward’s free speech retaliation claim under the Texas Constitution.

2015See Connick v. Myers, 461 U.S. 138 , 148 7 The Fifth Circuit has also articulated the elements for a First Amendment retaliation claim pertaining to speech to include a four-part, rather than simply a three-part, test. “[A] First Amendment retaliation claim in the employment context has four elements: (1) the plaintiff suffered an adverse employment decision, (2) the plaintiff’s speech involved a matter of public concern, (3) the plaintiff’s interest in speaking outweighed the governmental defendant’s interest in promoting efficiency, and (4) the protected speech motivated the defendant’s cond

2000To establish a First Amendment retaliation claim under 42 U.S.C.A. § 1983 (West Supp. 2000), “Plaintiffs must prove that: (1) Defendants were acting under color of state law; (2) Plaintiffs’ speech activities were protected under the First Amendment; and (3) Plaintiffs’ exercise of their protected right was a substantial or motivating factor in Defendants’ actions.” Harrington v. Harris, 118 F.3d 359, 365 (5th Cir.1997).