7-21 weslaco lawsuit

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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

McALLEN DIVISION

ROBERT LOPEZ, §

FEDERICO SALAZAR, §

JAVIER GARCIA, §

MARIA DOLORES SALINAS, §

TED WALENSKY, §

XENIA YARRITO MIRAMONTES, §

LORENZO COLUNGA, §

ROMEO GUERRA, §

RODOLFO RODRIGUEZ, JR., §

FELIX SALINAS, §

GERARDO OLIVA, §

BROOKS DITTO, §

ALBERTO PONCE, §

ESMERALDO LOPEZ, §

LIANDRO GONZALEZ, §

ARNULFO SANDOVAL, and §

Plaintiffs, §

§ Civil Action No. 1:14-cv-636

v. §

§ JURY DEMANDED

SERGIO RAMIREZ, in his individual §

capacity, §

Defendant. §

ORIGINAL COMPLAINT

AND

APPLICATION FOR PRELIMINARY INJUNCTION

TO THE HONORABLE JUDGE OF SAID COURT:

COMES NOW, plaintiffs, ROBERT LOPEZ, FEDERICO SALAZAR, JAVIER

GARCIA, MARIA DOLORES SALINAS, TED WALENSKY, XENIA YARRITO

MIRAMONTES, LORENZO COLUNGA, ROMEO GUERRA, RODOLFO RODRIGUEZ, JR.,

FELIX SALINAS, GERARDO OLIVA, BROOKS DITTO, ALBERTO PONCE,

ESMERALDO LOPEZ and ARNULFO SANDOVAL, in the above titled and numbered cause,

Case 7:14-cv-00636 Document 1 Filed in TXSD on 07/18/14 Page 1 of 20

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pursuant to 42 U.S.C. §§ 1983, 1988, the First Amendment to the United States Constitution,

Article I, Section 8 of the Texas Constitution, Texas Local Government Code § 141.035, Texas

Labor Code §§ 101.052 and 101.301 and 28 U.S.C. §§ 1331 and 1343, bringing claims for

violations of civil rights, and would respectfully show the Court as follows:

INTRODUCTION

1. Plaintiffs brings this civil rights action to redress the deprivation, under color of state law,

rights, privileges and immunities secured to plaintiff by the First Amendment to the United

States Constitution, Article I, Section 8 of the Texas Constitution, Texas Local Government

Code § 141.035, Texas Labor Code §§ 101.052 and 101.301. Defendant has engaged in

intentional conduct done for the sole purpose of violating plaintiff’s freedom of association.

Defendant has illegally used his position as Interim Chief of Police for the Weslaco Police

Department to:

a. take plaintiffs off certain assignments which entail additional pay based solely

plaintiffs’ union membership;

b. initiate baseless internal affairs investigations against plaintiffs based solely on

their union membership;

c. rescind an outside employment authorization that only affects plaintiffs, based

solely on their union membership;

d. cause a “chilling effect” on plaintiffs’ exercise of their First Amendment right of

freedom of association and freedom of speech; and

Taken as a whole, defendant’s knowing, deliberate and intentional actions were impermissibly

motivated by plaintiffs’ union membership and were done for the purpose of intimidating

plaintiffs from taking an active part in their union affairs.


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2. Plaintiff pleading complies with the requirements of Federal Rule of Civil Procedure

8(a)(2).1

PARTIES

3. Plaintiff, ROBERT LOPEZ, is an individual citizen and resident of Hidalgo County,

Texas. Mr. Lopez is a member of the Weslaco Municipal Police Union.

4. Plaintiff, FEDERICO SALAZAR, is an individual citizen and resident of Hidalgo

County, Texas. Mr. Salazar is a member of the Weslaco Municipal Police Union.

5. Plaintiff, MARIA DOLORES SALINAS, is an individual citizen and resident of

Cameron County, Texas. Ms. Salinas is a member of the Weslaco Municipal Police Union.

6. Plaintiff, TED WALENSKY, is an individual citizen and resident of Hidalgo County,

Texas. Mr. Walensky is a member of the Weslaco Municipal Police Union.

7. Plaintiff, XENIA YARRITO MIRAMONTES, is an individual citizen and resident of

Hidalgo County, Texas. Ms. Yarrito Miramontes is a member of the Weslaco Municipal Police

Union.

8. Plaintiff, LORENZO COLUNGA, is an individual citizen and resident of Hidalgo

County, Texas. Mr. Colunga is a member of the Weslaco Municipal Police Union.

9. Plaintiff, ROMEO GUERRA, is an individual citizen and resident of Hidalgo County,

Texas. Mr. Guerra is a member of the Weslaco Municipal Police Union.

10. Plaintiff, RODOLFO RODRIGUEZ, JR., is an individual citizen and resident of Hidalgo

County, Texas. Mr. Rodriguez, Jr. is a member of the Weslaco Municipal Police Union.

1 Ashcroft v. Iqbal, 556 U.S. 129 (2009)(holding that to satisfy the “plausible on its face” requirement in Fed. R.

Civ. Pro. 8(a)(2) “[a] claim has facial plausibility when the pleaded factual content allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.”).


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11. Plaintiff, FELIX SALINAS, is an individual citizen and resident of Hidalgo County,

Texas. Mr. Salinas is a member of the Weslaco Municipal Police Union.

12. Plaintiff, GERARDO OLIVA, is an individual citizen and resident of Hidalgo County,

Texas. Mr. Oliva is a member of the Weslaco Municipal Police Union.

13. Plaintiff, BROOKS DITTO, is an individual citizen and resident of Hidalgo County,

Texas. Mr. Ditto is a member of the Weslaco Municipal Police Union.

14. Plaintiff, ALBERTO PONCE, is an individual citizen and resident of Hidalgo County,

Texas. Mr. Ponce is a member of the Weslaco Municipal Police Union.

15. Plaintiff, ESMERALDA LOPEZ, is an individual citizen and resident of Hidalgo County,

Texas. Ms. Lopez is a member of the Weslaco Municipal Police Union.

16. Plaintiff, ARNULFO SANDOVAL is an individual citizen and resident of Hidalgo

County, Texas. Mr. Sandoval is a member of the Weslaco Municipal Police Union.

17. Defendant, SERGIO RAMIREZ, is an individual citizen and resident of Hidalgo County,

Texas. Mr. Ramirez may be served with process at his place of work at 901 N Airport Dr,

Weslaco, TX 78596. Mr. Ramirez was and is, at all relevant times, the Interim Chief of the

Weslaco Police Department when he committed the acts complained of herein and is sued herein

in his individual capacity.


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JURISDICTION AND VENUE

18. Pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and (4), this Court has jurisdiction over

this matter.2 Pursuant to 28 U.S.C. 1391(b), this matter is brought in the proper venue.

STATEMENT OF FACTS

19. Defendant, SERGIO RAMIREZ, (hereafter the “Interim Chief”) was named Weslaco’s

Interim Police Chief on May 2, 2014, and on information and belief, was subsequently

confirmed by a majority of the Weslaco City Commission. The press release regarding his

promotison states that the Interim Chief had served twenty (20) years with the Weslaco Police

Department (hereafter the “Department”) and during that time, served in labor union leadership

positions. With his promotion, the Interim Chief’s employment is no longer subject to the terms

of the collective bargaining agreement between the City of Weslaco and its police officers.

20. The Department has fifty-seven (57) officers. Those officers have the option of

becoming members of one of two local unions: (1) the Weslaco Municipal Police Union

(hereafter the “WMPU”); and (2) the Weslaco Law Enforcement Association (hereafter the

“WLEA”). Union membership is not required to be an officer in the Department.3 On

information and belief, the WLEA has nine (9) members. The WMPU has thirty-eight (38)

members.

21. The WMPU and the WLEA compete for membership and for recognition as the exclusive

bargaining agent for the Department’s police officers, pursuant to Texas Local Government

Code Ch. 174. Prior to becoming Interim Chief, defendant was a member of the WLEA. During

2 Because this action does not seek to impede, halt or alter any state criminal or administrative action, abstention

pursuant to Younger v. Harris, 401 U.S. 37 (1991) is not appropriate.

3 Texas Labor Code § 101.502 provides that a person may not be denied employment based on membership or

nonmembership in a labor union. Texas Labor Code § 101.301 provides that the right of a person to work may not

be denied or abridged because of membership or nonmembership in a labor union or other labor organization and

guarantees each person, exercising her right to work, freedom from threats, force, intimidation, or coercion.


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that time, the Interim Chief held leadership positions in the WLEA. On information and belief,

the Interim Chief knew and knows that plaintiffs were and are members of the WMPU during the

time period made relevant by this complaint.

22. Presently, the WMPU is the exclusive collective bargaining agent. See COLLECTIVE

BARGAINING LABOR AGREEMENT BETWEEN THE CITY OF WESLACO, TEXAS AND THE WESLACO

MUNICIPAL POLICE UNION (hereafter the “CBA”)(attached hereto as Exhibit “1”). The WMPU

collectively bargains with the City of Weslaco, through the Weslaco City Commission and its

representatives, for wages, benefits and working conditions. To further the interests of its

membership, the WMPU has a political action committee and endorses candidates for local

offices, in particular the Weslaco City Commission. An election for the Weslaco City

Commission District 2, 3 and 5 will be held in November 2014.

PLAINTIFFS LOSE ASSIGNMENT PAY BASED ON UNION MEMBERSHIP

23. Article 18, Section 4 of the CBA provides for compensation in the amount of $1,500.00

to officers who are given certain assignments, such as Criminal Investigators, Special Response

Team (S.W.A.T.), Motorcycle officers, etc. See CBA, p. 10-11. Again, the Interim Chief was

installed on or about May 2, 2014. On or about May 13, 2014, the Interim Chief removed the

following eight (8) WMPU members from assignments that entail additional pay:

a. Plaintiff, TED WALENSKY, was demoted from Captain to Lieutenant and placed

on “permanent graveyard,” a schedule never been assigned before;

b. Plaintiff, GERARDO OLIVA, was removed from the Criminal Investigation

Division and placed on patrol;

c. Plaintiff, BROOKS DITTO, was removed from the Criminal Investigation


d. Plaintiff, ARNULFO SANDOVAL, was removed from the Motorcycle unit and

placed on patrol;


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e. Plaintiff, FEDERICO SALAZAR, was removed from the Motorcycle unit and

placed on patrol;

f. Plaintiff, ESMERALDA LOPEZ, was removed from Crime Scene Investigator

and placed on patrol;

g. Plaintiff, FELIX SALINAS, was removed from the Criminal Investigation


h. Plaintiff, MARIA DOLORES SALINAS, was removed from the Criminal

Investigation Division and placed on patrol.

No members of the competing local union, the WLEA, were removed from assignments that

entail additional pay. No WMPU members have been promoted by the Interim Chief. However,

at the same time, the following three (3) WLEA members received “preferential lateral

transfers”:

i. Patrolman E. Galvan was promoted to the Criminal Investigation Division. Mr.

Galvan is a member of the WLEA.

j. Patrolman K. Castaneda was promoted to Criminal Investigation Division. Ms.

Castaneda is a member of the WLEA.

k. Patrol Sergeant Juan Meza was transferred to the newly created position of

“Administrative Sergeant.” Sgt. Meza is a member of the WLEA.

When the Interim Chief removed the above referenced assignments, on information and belief,

he knew that plaintiffs, TED WALENSKY, GERARDO OLIVA, BROOKS DITTO, ARNULFO

SANDOVAL, FEDERICO SALAZAR, ESMERALDA LOPEZ, FELIX SALINAS and MARIA

DOLORES SALINAS, were members of the WMPU. Further, when the Interim Chief selected

persons for promotion, he did so knowing that Patrolman E. Galvan, K. Castaneda and Sgt. Meza

were members of the competing union, the WLEA. The Interim Chief’s removal of assignments

were impermissibly motivated by plaintiffs’ union membership and were done for the purpose of

intimidating plaintiffs from taking an active part in WMPU affairs.


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BASELESS INTERNAL AFFAIRS INVESTIGATIONS.

24. Sgt. Meza's newly-created classification as “Administrative Sergeant” includes the

following benefits:

a. a fixed shift as opposed to a rotating shift;

b. administrative duties as opposed to standard patrol sergeant duties;

c. A dedicated desk and/or office for his exclusive use; and

d. management rights and duties above and over other Sergeants and Lieutenants,

including the sole assignment of internal affairs investigations.

25. The new benefits listed above are not, and have not been prior to the new classification’s

creation, part of the rights, benefits and compensation of the recognized classification of

Sergeant under the Article 16 of the CBA. Further, pursuant to Article 31, Sgt. Meza is

ineligible for promotion because he failed to satisfy the required physical fitness for duties

standards. Sgt. Meza’s voluntary transfer and promotion to the new classification of

“Administrative Sergeant” violates the CBA.4 As per the Interim Chief’s “special assignment,”

Sgt. Meza has been given exclusive prosecution of internal affairs investigations within the

Department.

26. Internal affairs investigations can lead to administrative actions against Department

officers, up to and including indefinite suspension without pay. The CBA between the City of

Weslaco and the WMPU, in conformance with Texas Local Government Code Ch. 143, provides

4 On or about May 29, 2014, pursuant to Article 32 of the CBA, the WMPU filed a grievance against the

Department for these actions by the Interim Chief. On or about June 11, 2014, pursuant to Article 32 of the CBA,

the Interim Chief responded to the Grievance and stated his position that Sgt. Meza’s assignment was not a

promotion, but rather a special assignment. This grievance is still pending in the grievance process. Plaintiffs are

not asking this Court to adjudicate whether or not Sgt. Meza’s promotion violates the CBA nor do they ask the Court

to order the Interim Chief to rescind his order assigning Sgt. Meza to the classification as Administrative Sergeant.

Rather, this set of facts is being used to demonstrate how the Interim Chief, impermissibly motivated by plaintiffs’

union membership, is using the internal affairs process to intimidate plaintiffs from taking an active part in WMPU

affairs.


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for a dispute resolution process. One of the factors taken into consideration during a dispute

resolution process is the number of violations an officers has been found to have.

27. On Sunday, May 18, 2014, Alvino Flores, Sr. and plaintiffs, TED WALENSKY,

ROBERT LOPEZ, RODOLFO RODRIGUEZ, JR., LORENZO COLUNGA, XENIA YARRITO

MIRAMONTES, ROMEO GUERRA and FELIX SALINAS attended a service for Howard

Bloomquit, at the Christian Fellowship Church, in honor of his retirement from fourteen (14)

years of voluntary service with the Department. Plaintiffs previously obtained permission from

Lieutenant Robert de la Cerda and Captain Adan Sanchez, to wear their uniforms to the event.

However, on or about May 30, 2014, Sgt. Meza served each plaintiff listed in this paragraph with

a notice of internal investigation regarding their participation in this event. All of the internal

affairs investigations were initiated by the Interim Chief, himself. No member of the WLEA was

issued a notice of internal investigation.5 On or about July 7, 2014, Alvino Flores, Sr., was

formally reprimanded for his attendance at the service from Mr. Bloomquit.

INTERIM CHIEF’S CONDUCT HAS CAUSED A “CHILLING EFFECT.”

28. As stated above, City of Weslaco Commissioners for District 2, 3 and 5 are set for

election in November 2014. Section 5.34(B) of the Weslaco Police Department Rules &

Regulations, titled “Political Activity,” provides, in relevant part, that officers/employees are

prohibited from:

“1. Using their official capacity to influence, interfere with or affect the

results of an election;

4. Becoming candidates for, or campaigning for, a partisan elective public

officer; or

5 Plaintiffs are not asking the Court to halt or modify the internal affairs process or outcome for their individual

cases. Rather, this set of facts is being used to demonstrate how the Interim Chief, impermissibly motivated by

plaintiffs’ union membership, is using the internal affairs process to intimidate plaintiffs from taking an active part

in WMPU affairs


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5. Soliciting votes in support of, or in opposition to, a partisan candidate.”

This Department has a long history of its officers in their private capacity, on their own time and

not in uniform “block-walking” for political candidates. On or about June 16, 2014, one of the

candidates for Weslaco City Commission sought the City Manager’s approval for officers to

“block-walk” for her. That request for approval was sent from the City Manager to the Interim

Chief.

29. Plaintiffs and other members of the WMPU were uncertain if “block-walking” for a

candidate would cause them to be targets of an internal affairs investigation. As a result of this

uncertainty, plaintiffs and other members of the WMPU have filed a request for pre-clearance

with the Interim Chief asking him to determine whether an officer “block-walking” in his/her

private capacity, on his/her own time and not in uniform violates Section 5.34(B) and in the

event the Interim Chief determines that “block-walking” does not violate that section, the

WMPU members requested his approval to “block-walk” for a candidate of their choice. As of

the date of this filing, the Interim Chief has not responded. The Interim Chief’s decision to not

respond to the request for pre-clearance was done for the purpose of intimidating the WMPU

membership from publicly associating together and weakening the union during the coming

election.

30. On June 17, 2014, the day after a Weslaco City Commissioner asked for approval for

Department officers to “block-walk” for her, the Interim Chief issued an order, effective

Tuesday, June 24, 2104, that “all off duty employment at apartment complexes will be

temporarily terminated. See ORDER (attached hereto as Exhibit “2”). Section 2.07 of the City

of Weslaco Personnel Policies and Procedures Manual, allows officers of the Department to

maintain outside employment, so long as the officer files a request for outside employment for


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each fiscal year. The request requires the City Manager’s approval in writing.6 Section 2.07(F),

provides that the City Manager’s approval may be rescinded without notice.7

31. Alvino Flores, Sr. and plaintiffs, JAVIER GARCIA and FEDERICO SALAZAR, work

off-duty as “Courtesy Officers” for “Section 8” housing complexes. These officers do not

qualify for “Section 8” housing but are allowed to live there in exchange for providing certain

“patrol” services. See COURTESY OFFICER RESPONSIBILITIES AND TENANCY AGREEMENT

(attached hereto as Exhibit “3”). The plaintiffs listed in this paragraph all live in these “Section

8” housing complexes pursuant to a lease agreement. Id. Alvino Flores, Sr. and plaintiffs,

JAVIER GARCIA and FEDERICO SALAZAR, properly filed the request for outside

employment and each of them have been approved in writing for this fiscal year. Only the three

plaintiffs listed in the paragraph above are affected by the order regarding courtesy officers.

Each of them signed the request to “block-walk”. No members of the WLEA are affected by this

order.

32. On June 19, 2014, Alvino Flores, Sr. met with the Interim Chief regarding the application

of this order and the matter remains unresolved. Since that conversation, the Interim Chief has

directed investigators to interview the management and residences of these apartments. Some of

those interviewed felt that they were being intimidated and/or were given the impression that the

plaintiffs working there as “courtesy officers” were involved in a crime.

33. On or about July 7, 2014, plaintiff, FEDERICO SALAZAR, was given an “advanced

notice of lease termination” stating that his lease would not be renewed and that he must vacate

6 Section 2.07 says that the request for outside approval requires the approval of the City Manager and the

Department Head. However, that section only requires the City Manager to provide written approval.

7 As of the date of this filing, the City Manager has not rescinded his approval for plaintiffs outside employment as

“Courtesy Officers.”


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his apartment by July 31, 2014. On information and belief, the advanced notice of lease

termination was given to this plaintiff as a direct result of the Interim Chief’s intentional and in-

bad-faith conduct.

34. Members of the WMPU want to exercise their First Amendment Rights. However, the

removal of assignments, Sgt. Meza’s promotion and the outside employment prohibition has

caused a “chilling effect,” intimidating plaintiffs from taking an active part in WMPU affairs.

Some members of the WMPU have begun to discuss with the union’s leadership their

deliberation of whether or not to maintain their union membership in light of the risk of reprisal

from the Interim Chief.

CAUSES OF ACTION

COUNT 1: FIRST AMENDMENT VIOLATION – INTERFERENCE WITH FREEDOM OF ASSOCIATION

AND FREEDOM OF SPEECH.

35. Plaintiffs allege and incorporate the section titled, “Statement of Facts”, above, as if fully

set forth herein in Count I. Defendant intentionally:

a. Took plaintiffs off certain assignments which entail additional pay based solely

plaintiffs’ union membership;

b. initiated baseless internal affairs investigations against plaintiffs based solely on

their union membership;

c. rescinded an outside employment authorization that only affects plaintiffs; and

d. caused a “chilling effect” on plaintiffs’ exercise of their First Amendment right to

freedom of association.

Defendant intentionally violated plaintiff’s rights under the First Amendment to the United

States Constitution, Article I, Section 8 of the Texas Constitution and Texas Labor Code §§

101.052 and 101.301. Defendant’s conduct caused harm to plaintiffs. Defendant acted under

color of law. Therefore, defendant are liable to plaintiffs, pursuant to 42 U.S.C. § 1983 and

Texas Local Government Code § 141.035.


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COUNT 2: DECLARATORY RELIEF.

36. Pursuant to 28 U.S.C. §§ 2201 -2202, plaintiffs seek declaratory judgment stating that the

Interim Chief violated their right to freedom of association, guaranteed by the First Amendment

to the United States Constitution, Article I, Section 8 of the Texas Constitution, Texas Local

Government Code § 141.035, Texas Labor Code §§ 101.052 and 101.301, as described above.

Pursuant to Federal Rule of Civil Procedure 57, plaintiffs elect to have this claim tried before a

jury.

COUNT 3: INJUNCTIVE RELIEF.

37. Plaintiffs request that the Court grant a permanent injunction against defendant, SERGIO

RAMIREZ, prohibiting him from intimidating and/or attempting to intimidate plaintiffs from

taking an active part in WMPU affairs through the use of his managerial discretion in making

assignments, instigating internal affairs investigations and promulgating general orders.

COMPENSATORY DAMAGES

38. As a direct and proximate result of defendants’ violations of plaintiffs constitutional

rights, plaintiff suffered the following injuries and damages:

a. Compensatory damages in the amount of $180,000.00;

b. The wages, salary, profits, and earning capacity that plaintiffs lost and the present

value of the wages, salary, profits, and earning capacity that plaintiffs are

reasonably certain to lose in the future because of defendant’s actions;

c. The mental/emotional pain and suffering that plaintiffs have experienced and are

reasonably certain to experience in the future;

d. Nominal damages.


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PUNITIVE DAMAGES

39. Defendant’s conduct was accompanied by ill will or spite, or was done for the purpose of

injuring plaintiffs. Defendant’s conduct reflects a complete indifference to plaintiffs’ rights.

Therefore, plaintiffs seeks punitive damages.

ATTORNEY FEES

40. Pursuant to 42 U.S.C. § 1988, plaintiffs are entitled to an award to attorney fees and

costs.

APPLICATION FOR PRELIMINARY INJUNCTION.

41. To prevail on an application for a preliminary injunction, a plaintiff must establish: “(1) a

substantial likelihood that plaintiff will prevail on the merits, (2) a substantial threat that plaintiff

will suffer irreparable injury if the injunction is not granted, (3) that the threatened injury to

plaintiff outweighs the threatened harm the injunction may do to defendant, and (4) that granting

the preliminary injunction will not disserve the public interest.” Green v. Wells Fargo Bank,

N.A., 2014 WL 3378343 (5th Cir. 2014). The Anti-Injunction Act8 does not apply to § 1983

actions because that section is expressly authorized by Congress. Mitchum v. Foster, 407 U.S.

225 (1972). Generally, three elements must be established for a § 1983 action: (1) deprivation

of a right secured by federal law, (2) that occurred under color of state law, and (3) was caused

by a state actor. Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004).

42. The First Amendment protects an employee’s right to associate with a union. Boddie v.

City of Columbus, Miss., 989 F.2d 745, 748 (5th Cir. 1993). Except where a government

employer can make a showing that political affiliation is an appropriate requirement for a certain

job, government employees cannot be fired, demoted, hired, promoted or transferred because of

8 28 U.S.C. § 2283 (prohibits federal courts from enjoining some state proceedings),


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their political affiliations. See Elrod v. Burns, 427 U.S. 347 (1976); Rutan v. Republican Party

of Illinois, 497 U.S. 62 (1990). Adverse employment actions based on union membership

provide the basis for § 1983 liability through the First Amendment. Moreno v. Texas A&M

University Kingsville (Tamuk); 2006 WL 3030713 (S.D. Tex, Corpus Christi Division 2006). An

employee suffers an adverse employment action if a reasonable employee would have found the

challenged action materially adverse. Marceaux v. Lafayette City-Parish Conol. Government,

921 F.Supp.2d 605, 638 (“a transfer may be equivalent to a demotion and consequently an

adverse employment action even without resulting in a decrease in pay, title, or grade if the new

position proves to be objectively worse than the prior position, such as being less prestigious,

less interesting, or providing less room for advancement”).

43. A standard § 1983 First Amendment “free speech” claim requires a plaintiff to prove the

following four elements:

a. That the plaintiff suffered an adverse employment action;

b. That the plaintiff’s speech involved a matter of public concern;

c. That the plaintiff’s interest in speaking outweighed the governmental defendant’s

interest in promoting efficiency; and

d. That the protected speech motivated the defendant’s conduct.

Juarez v. Aguilar, 666 F. 3d 325, 332 (5th Cir. 2011). However, the elements for “freedom of

association” cases differ from “free speech” cases. Boddie at 748-49.

“The first amendment protects the right of all persons to associate together in

groups to further their lawful interests. This right of association encompasses the

right of public employees to join unions and the right of their unions to engage in

advocacy and to petition government in their behalf. Thus, the first amendment is

violated by state action whose purpose is either to intimidate public employees

from joining a union or from taking an active part in its affairs or to retaliate

against those who do. Such protected First Amendment rights flow to unions as

well as to their members and organizers.”


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Id. (quoting Allee v. Medrano, 416 U.S. 802, 819 n. 13 (1974)). Therefore, in a freedom

of association claim, a plaintiff does not have to prove the “matter of public concern”

element and engage in the Pickering9 balance. Id.; Moreno at 3 (citing Coughlin v. Lee,

946 F.2d 1152, 1158 (5th Cir. 1991)(“A public employee’s claim that he has been

discharged for his political association in violation of his right to freely associate is not

subject to the threshold public concern requirement”).

44. In order to assert a valid claim against an official in his individual capacity, a § 1983

claimant must establish that the defendant was either personally involved in a constitutional

deprivation or that his wrongful actions were causally connected to the constitutional

deprivation. Jones v. Lowndes County, Miss., 678 F.3d 344, 349 (5th Cir. 2012). The doctrine

of qualified immunity limits a public official’s § 1983 civil liability for the performance of

discretionary functions. Moreno at 1. Officials are protected from liability for civil damages so

long as their conduct has not violated clearly established statutory or constitutional rights of

which a reasonable person would have known. Id. The Fifth Circuit has determined that a

public employee’s right to associate with a union has been clearly established since 1987.

Boddie at 748.

45. Plaintiffs allege and incorporate the section titled, “Statement of Facts”, above, as if fully

set forth herein. Again, the Interim Chief took office May 2, 2014. Prior to his promotion, the

Interim Chief was a member of the WLEA. During the times made relevant by this complaint,

the Interim Chief knew that plaintiffs were all members of the WMPU.

9 Pickering v. Board of Educ., 391 U.S. 563, 568, 88 S.Ct. 1731, 1734, 20 L.Ed.2d 811 (1968)(in free speech cases,

the Court balances the government's interest in an efficient workplace against the employee's First Amendment

interest considering a number of factors, if the speech was a public concern and not personal).


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46. On or about May 13, 2014, approximately nine days after his promotion, the Interim

Chief removed eight WMPU from assignments that entailed additional compensation. No

members of the WLEA lost assignment pay. On the contrary, only WLEA were promoted by the

Interim Chief.

47. On or about May 12, 2014, approximately eight days after his promotion, the Interim

Chief promoted a WLEA member to the newly-created position of “Administrative Sergeant”

and gave him the sole responsibility of conducting internal affairs investigations. From May 30,

2014 to June 2, 2014, only WMPU members were issued notices of internal affairs investigations

against them. All the internal affairs investigations were initiated by the Interim Chief himself.

48. On or about June 16, 2014, a candidate for the Weslaco City Commission asked the

membership of the WMPU to “block-walk” for her. That same day, that request was forwarded

to the Interim Chief through the City Manager. The next day, the Interim Chief issued an order

prohibiting Weslaco Police Department officers from working as “courtesy officers.” No WLEA

members were affected by this order. As a result, plaintiff, FEDERICO SALAZAR, has been

issued a notice of lease termination.

49. The authority and facts listed above demonstrates a substantial likelihood that plaintiffs

will prevail on the merits of their complaint. “It is well established that the loss of First

Amendment freedoms for even minimal periods of time constitutes irreparable injury justifying

the grant of a preliminary injunction.” 35 Bar and Grille, LLC v. City of San Antonio, 943

F.Supp.2d 706, 724 (W.D. Texas, San Antonio Division 2013)(quoting Deerfield Med. Ctr. V.

City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981). A “chilling effect” has already been

created by the Interim Chief conduct and its continuation threatens a harm that outweighs any

harm that may come to the Interim Chief if a preliminary injunction is issued. Lastly, the public


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has an interest in protecting the right of its employees to associate with a union. See Moreno;

Boddie; 35 Bar and Grille, LLC. Therefore, pursuant to Federal Rule of Civil Procedure 65,

after proper notice and hearing, the Court should grant this application for a preliminary

injunction prohibiting the Interim Chief from intimidating and/or attempting to intimidate

plaintiffs from taking an active part in WMPU affairs through the use of his managerial

discretion in making assignments, instigating internal affairs investigations and promulgating

general orders.

PRAYER

WHEREFORE, PREMISES CONSIDERED, plaintiffs, ROBERT LOPEZ, FEDERICO

SALAZAR, JAVIER GARCIA, MARIA DOLORES SALINAS, TED WALENSKY, XENIA

YARRITO MIRAMONTES, LORENZO COLUNGA, ROMEO GUERRA, RODOLFO

RODRIGUEZ, JR., FELIX SALINAS, GERARDO OLIVA, BROOKS DITTO, ALBERTO

PONCE, ESMERALDO LOPEZ and ARNULFO SANDOVAL request that the Court sets their

application for preliminary injunction for hearing at the earliest possible time and thereafter grant

a preliminary injunction preventing defendant, SERGIO RAMIREZ, from intimidating and/or

attempting to intimidate plaintiffs from taking an active part in WMPU affairs through the use of

his managerial discretion in making assignments, instigating internal affairs investigations and

promulgating general orders. Plaintiffs pray that upon trial of the merits, the Court grant

declaratory judgment in their favor and against defendant, SERGIO RAMIREZ, declaring that

defendant has violated plaintiff’s First Amendment right of freedom of association, Article I,

Section 8 of the Texas Constitution, Texas Local Government Code § 141.035, Texas Labor

Code §§ 101.052 and 101.301. Plaintiffs pray that the Court grant a permanent injunction

preventing defendant, SERGIO RAMIREZ, from intimidating and/or attempting to intimidate


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plaintiffs from taking an active part in WMPU affairs through the use of his managerial

discretion, instigating internal affairs investigations and promulgating general orders. Plaintiffs

pray that they:

recover compensatory damages against defendant, SERGIO RAMIREZ;

recover punitive damages against defendant, SERGIO RAMIREZ; and

recover against defendant all reasonable and necessary attorney’s fees, court costs and

expenses in regards to the present suit in litigation.

Moreover, plaintiffs pray for all pre-judgment and post-judgment interest that can be assessed

against defendant, SERGIO RAMIREZ, in the event of recovery; and that plaintiffs recover

against defendant, SERGIO RAMIREZ, any and all other general relief or specific relief to

which they prove themselves entitled.


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Respectfully submitted,

DAVID WILLIS, P.C.

1534 E. 6th Street, Suite 201

Brownsville, Texas 78520

Ph: 956-986-2525

Fax: 956-986-2528

___/s/ David Willis______

David Willis

State Bar No. 24039455

Fed. ID: 36365

Attorney in charge for plaintiff.


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