Anderson v. Valdez (293 F. Supp. 3d 636, 2017)

Randy Crane, United States District Judge

I. Factual and Procedural Background

Now before the Court is the Motion for Summary Judgment filed by Defendant Rogelio Valdez, Chief Justice of the Texas Thirteenth Court of Appeals, in his individual and official capacities. (Dkt. No. 91). Plaintiff Bruce M. Anderson filed this lawsuit in October 2014 pursuant to 42 U.S.C. § 1983, alleging that Chief Justice Valdez violated Plaintiff's right to free speech under the First Amendment to the U.S. Constitution by retaliating against Plaintiff for reporting the potential misuse of public funds by Valdez. (Dkt. No. 1). In January 2015, Defendant moved to dismiss Plaintiff's suit pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and Plaintiff responded by moving for leave to amend his complaint to add clarifying factual allegations. (Dkt. Nos. 16, 18). The Court granted the opposed motion for leave, thereby mooting the motion to dismiss, in April 2015. (Dkt. No. 29).

In May 2015, Defendant renewed his request for dismissal under Rule 12(b)(6), claiming that he was entitled to qualified immunity from Plaintiff's First Amendment claim against him in his individual capacity, and that Plaintiff lacked any factual or legal basis for his requests for declaratory and injunctive relief against Defendant in his official capacity. (Dkt. No. 35). In June 2015, the Court granted the motion to dismiss with respect to Plaintiff's request for declaratory relief, but denied Plaintiff's appeal to qualified immunity at the Rule 12(b)(6) stage and permitted Plaintiff to pursue his request for injunctive relief in the form of reinstatement. (Dkt. No. 42). Defendant appealed the Court's denial of qualified immunity to the Fifth Circuit Court of Appeals, and the Fifth Circuit affirmed. Anderson v. Valdez , 845 F.3d 580 (5th Cir. 2016), rh'g en banc denied (2017). Upon Defendant's request, opposed by Plaintiff, the Court stayed all proceedings during the pendency of the appeal, from July 2015 to January 2017. (Dkt. No. 52). In July 2017, the Court granted Plaintiff's second, opposed motion for leave to amend his complaint to add factual allegations relevant to a new, anticipated defense theory. (Dkt. No. 89). Through the instant Motion also filed in July 2017, after the close of discovery, Defendant now requests summary judgment on Plaintiff's First Amendment retaliation claim and request for reinstatement. (Dkt. No. 91; see Dkt. No. 69). Upon consideration of the Motion and the parties' responsive briefing (Dkt. Nos. 94, 96), in light of the relevant law, the Court finds that the Motion must be denied for the following reasons.

II. Standard of Review

A district court must grant summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). A fact is material if it might affect the outcome of the lawsuit under the governing law, and is genuinely in dispute only if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A party moving for summary judgment has the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings and materials in the record, if any, which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; FED. R. CIV. P. 56(a), (c). Once the moving party carries its burden, the burden shifts to the nonmovant to go beyond the pleadings and provide specific facts showing the existence of a genuine issue for trial. Celotex , 477 U.S. at 324, 106 S.Ct. 2548 ; FED. R. CIV. P. 56(c). In conducting its review of the summary judgment record, the court "may not make credibility determinations or weigh the evidence" and must resolve doubts and reasonable inferences regarding the facts in favor of the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ; Anderson , 477 U.S. at 255, 106 S.Ct. 2505 ; Dean v. City of Shreveport , 438 F.3d 448, 454 (5th Cir. 2006). However, the nonmovant cannot satisfy its burden with "conclusory allegations, speculation, and unsubstantiated assertions which are either entirely unsupported, or supported by a mere scintilla of evidence." Chaney v. Dreyfus Serv. Corp. , 595 F.3d 219, 229 (5th Cir. 2010) ; see also Brown v. City of Houston , 337 F.3d 539, 541 (5th Cir. 2003) ("Unsubstantiated assertions, improbable inferences, and unsupported speculation are not sufficient to defeat a motion for summary judgment.").

III. Overview of Summary Judgment Evidence

A. Plaintiff's Work History with the Thirteenth Court of Appeals and Justice Rose Vela

The Thirteenth Court of Appeals (referred to herein as the "Thirteenth Court" or "Court") for the State of Texas is comprised of six elected Justices and divided between two courthouses, one in Corpus Christi and one in Edinburg. (Dkt. No. 91, VELA DEP. at p. 13; GSANGER DEP. at pp. 18, 31, 33; PERKES DEP. at pp. 14-15; DEFENDANT DEP. at p. 60). Plaintiff testified that his employment as an attorney with the Thirteenth Court spanned over 20 years, during which time Plaintiff worked for four different Justices in Corpus Christi. After leaving his employment with the Hidalgo County District Attorney's ("DA's") Office in 1988, Plaintiff first worked as a briefing attorney for Chief Justice Paul W. Nye for five years. (Dkt. No. 91, PLAINTIFF DEP. at pp. 7-8, 146). When Nye retired, Plaintiff became a research attorney working on more complex cases for the next Chief Justice, Robert J. Seerden, until 1996.

Id. at pp. 8-9. Plaintiff then received a promotion to the position of staff attorney for Justice J. Bonner Dorsey and held that position until Dorsey retired at the end of 2002. Id. at p. 9. After working as a writs attorney for the Nueces County DA's Office from early 2003 until the end of 2006, Plaintiff returned to the Thirteenth Court as a briefing attorney for newly-elected Justice Rose Vela. Id. at pp. 10, 12.

Justice Vela testified that she first met Plaintiff when she worked as a briefing attorney for Chief Justice Seerden from 1990 to 1992. (Dkt. No. 91, VELA DEP. at p. 66). During that time, Vela interacted with Plaintiff on a daily basis to conduct research and draft opinions for the Court. Id. at p. 68. When she became a Justice herself, Vela hired Plaintiff as her briefing attorney and he served in this position for the entirety of Vela's six-year term, from January 1, 2007 through December 31, 2012. Id. at pp. 12, 70-71. Vela explained that although the briefing attorney position was considered junior to the staff attorney position within each Justice's chambers, she "had two very qualified attorneys, so [she] considered them to be equal." Id. at p. 70. Vela assigned her criminal cases to Plaintiff given his DA's Office experience, while the civil cases were assigned to the staff attorney who was board-certified in civil appellate law. Id. at pp. 72, 124-25. Although Vela opted for this general division of labor, she testified that both attorneys were able to and did work on both types of cases. Id.

Plaintiff testified that he is legally blind, and that he lost all reading vision in 1996, at which point he began using a print magnifier at work. (Dkt. No. 91, PLAINTIFF DEP. at pp. 15-16). Justice Vela suggested that because of his impairment, Plaintiff "was just a workaholic"; she described him as "an excellent attorney" and "by far, in my opinion, one of the hardest working attorneys that I had ever worked with in any...part of my career." (Dkt. No. 91, VELA DEP. at p. 123).

B. Justices Vela and Perkes Investigate Use of Chapter 22 Fund

Justice Vela testified that in early 2011, the Nueces County Republican Party approached her and newly-elected Justice Gregory T. Perkes about the party's interest in a bill filed in the Texas legislature to split the Thirteenth Court into two appellate courts, one in Corpus Christi and one in Edinburg. Id. at p. 17. At the time, Justices Vela and Perkes were the only Justices on the Thirteenth Court who had been elected as Republicans. (Dkt. No. 91, VELA DEP. at p. 133; PERKES DEP. at pp. 106-07). The remaining four Justices had been elected as Democrats. (Dkt. No. 91, VELA DEP. at p. 133). Vela and Perkes, along with Justice Nelda Rodriguez, were based in Corpus Christi, and Defendant and Justices Gina Benavides and Dori Contreras were based in Edinburg, although the Justices heard oral argument in both locations. (Dkt. No. 91, VELA DEP. at pp. 14, 132; Dkt. No. 91 at pp. 580, 584).

Justice Vela testified that in researching the bill to split the Thirteenth Court, she and Perkes learned of "a fiscal note attached to the bill, which meant that in order for the bill to succeed...it had to show that the effect of [the split] would be budget neutral." (Dkt. No. 91, VELA DEP. at pp. 17-18). The Justices then decided to "figure out how [the split could] be budget neutral by looking into the finances of the court[.]" Id. at p. 18.

In speaking with the Nueces County Judge, Nueces County Auditor, and the Thirteenth Court's Chief Clerk at the time, Cathey Wilborn, Justices Vela and Perkes became aware of a fund prescribed by Chapter 22 of the Texas Government Code ("Chapter 22 fund"), consisting of filing fees paid by litigants to the counties covered by the Thirteenth Court. (Dkt. No. 91, VELA DEP. at pp. 16, 20-21; PERKES DEP. at p. 35). The Justices also learned that "there were leftover funds every year and those funds would go directly to the chief justice's office." (Dkt. No. 91, VELA DEP. at p. 16; PERKES DEP. at p. 35).

At some point, a Texas Public Information Act request (referred to herein as "open records request") pertaining to the Chapter 22 fund was made by Joel Yowell, an individual involved in the local Republican party who had previously served as Justice Vela's campaign treasurer. (Dkt. No. 91, VELA DEP. at p. 23; see Dkt. No. 94, Exh. 13). In a letter dated May 10, 2011, Defendant in his capacity as Chief Justice responded to Yowell that upon consultation with the Court's accountant, Thomas Mendez, the Thirteenth Court had decided to charge for the production of certain of the requested records, at the approximate total cost of $1,500.00. (Dkt. No. 94, Exh. 13). By letter dated June 1, 2011, Vela and Perkes wrote to Defendant about the open records request for documents related to the Chapter 22 fund, and stated that they had learned that this public fund had never been audited. (Dkt. No. 91 at p. 536). The Justices communicated their beliefs that "an audit of this fund (from its inception) to the present date [should] be performed by either the state or county auditor at the earliest possible date," and that such an audit was "the only true way to maintain the integrity of the accounting procedures and continued receipt of the fund, as well as to pass public scrutiny." Id.

At some point after the open records request, and possibly on two occasions, all of the Justices met to discuss the request and the Chapter 22 fund. (Dkt. No. 91, VELA DEP. at pp. 61-63; PERKES DEP. at p. 121-22; BENAVIDES DEP. at p. 52; DEFENDANT DEP. at p. 119). Defendant testified that when the Justices met, Vela inquired about the Chapter 22 fund, Defendant "proceeded to explain...what it [was] because Perkes was brand-new," and Vela and Perkes told Defendant that they wanted an audit of the fund. (Dkt. No. 91, DEFENDANT DEP. at pp. 112-13). Defendant opposed the audit as costly and without reason, explaining:

Now, if you tell me there's some reason, if one of my employees is doing something wrong or, you know, you find out something's odd, let's do an audit. I will be the first one to be in line. But just to have an audit just to have an audit, you know, it doesn't make any sense.

Id. at pp. 113-14. Defendant also characterized the audit request as the unnecessary airing of "dirty laundry," explaining that the airing and resolution of any problem should first occur internally, rather than "out in public where people are listening to us." Id. at p. 120. According to Defendant, neither Vela nor Perkes ever expressed to him any belief that he had mismanaged the funds in the Chapter 22 account. Id. Defendant knew that Vela's former campaign treasurer had made the open records request, and had heard rumors that Vela was planning to run for office against him, but did not know whether the motivations for the audit were political. Id. at pp. 110-12, 117. To him, the audit request "was coming out of left field." Id. at p. 119.

Justice Perkes testified that when the Justices met, Perkes supported the request for records related to the Chapter 22 fund because the Justices had a fiduciary responsibility to the Thirteenth Court, and "it deeply concerned [him] that there was a fund that was unaudited, a public fund." (Dkt. No. 91, PERKES DEP. at pp. 122-23). He recalled Defendant referring to the Chapter 22 fund as a "slush fund." Id. at p. 133. Justice Benavides testified to her belief that an audit was an "unnecessary expenditure of money from the Court," given that the Office of Court Administration ("OCA") already reviews the Thirteenth Court's financial records, and also since the Court "[wasn't] having any problems that would require an audit." (Dkt. No. 91, BENAVIDES DEP. at pp. 51-53). She recalled that the other Justices "were all pretty much on the same page except for, of course, Justice Vela and Justice Perkes." Id. at p. 53. Perkes testified that Benavides also expressed her disagreement with the audit request in a separate, brief exchange with him after oral argument, and that in his opinion she was "sticking up for the chief." (Dkt. No. 91, PERKES DEP. at p. 138).

On or around July 5, 2011, Justices Vela and Perkes sent a letter to the OCA, the entity that "oversee[s]...the courts of appeal across the state of Texas," taking issue with a July 1, 2011 letter sent to the OCA by Defendant on behalf of the Thirteenth Court. (Dkt. No. 91, PERKES DEP. at pp. 141-42; Dkt. No. 91 at pp. 534-35). According to Vela and Perkes's letter, Defendant had written to the OCA that "[g]iven these lean financial times and the State budgetary cuts impacting the Court, the Court en banc determined that waiving the charges [for the open records request] was not in the public interest because the records sought do not primarily benefit the general public." (Dkt. No. 91 at p. 534). Vela and Perkes disagreed "that documents reflecting the Court's use of public, taxpayer funds does not 'primarily benefit the general public,' " and also with Defendant's representation that this determination was made "en banc" by all six of the Thirteenth Court Justices. Id. Vela and Perkes further expressed their concern that the Chapter 22 monies managed by Defendant were "possibly being used outside of their permissible scope," noting that the only monthly bank statement produced through the open records request showed check card charges to local restaurants. Id. at p. 535. The Justices sought "guidance as to the permissible use of these funds, so as to fully ensure compliance with the law," and also noted that no action had been taken on their previous correspondence requesting an audit. Id.

By letter dated September 22, 2011, the OCA responded that under the operative statutory provisions, "the only limitation on the Court's authority to use [the Chapter 22] funds is that they be used for official court business." Id. at pp. 532-33. The letter also recommended that "the appropriate entity to conduct...an audit would be the state auditor, not the county auditor," under the authority of Texas Government Code § 321.017. Id. at p. 533. In or around November 1, 2011, Justices Vela and Perkes wrote to the State Auditor's Office to request an audit "as soon as possible," noting that "[u]ntil this week, [they] were not provided access to information regarding expenditures from [the Chapter 22 fund account managed by Defendant] and had no knowledge of how these funds were being utilized." (Dkt. No. 94, Exh. 15). Referencing bank statements and documentation provided in response to the open records request, and apparently attached to the letter, the Justices opined that "the fund has been used for hotels, restaurants, travel, employee bonuses, birthday cakes, flowers and other various uses which we do not believe are within the permissible scope of the fund's use or are within the spirit of the intended use of taxpayer monies." Id. Vela testified that Yowell provided her with the bank statements and documentation, that she reviewed them pursuant to her responsibility as a steward of public funds, and that when the records revealed "questionable use of taxpayer money," she believed it her duty as a Thirteenth Court Justice "to do something." (Dkt. No. 91, VELA DEP. at pp. 24-25, 40-41). Perkes recalled Vela showing records to him, and that he saw charges for "meals for staff to go out for birthday parties" and "trips that seemed like they were not for judicial purposes." (Dkt. No. 91, PERKES DEP. at p. 134). However, he did not "carefully walk through the documents"; he wanted the fund audited but "did not want to get deep in the minutiae of the political that [he] saw going on." Id.

In a letter dated November 17, 2011 and addressed to Justices Vela and Perkes, with copies sent to the other Justices, the State Auditor's Office responded that "[d]ue to limited resources and our audit work schedule, the SAO will not be able to initiate an audit as requested at this time." (Dkt. No. 94, Exh. 16). Perkes testified to his belief that no audit ever occurred. (Dkt. No. 91, PERKES DEP. at p. 132).

C. Justice Vela Compares Chapter 22 Fund Records with Defendant's Campaign Finance Records, and Asks Plaintiff for His Opinion

Justice Vela testified that she did not involve Plaintiff in the audit request, and that she did not recall speaking to him about the Chapter 22 fund in 2011. (Dkt. No. 91, VELA DEP. at p. 134). However, sometime in 2012, while meeting with Plaintiff in her office during the course of the workday, she spoke to him about records she had obtained which indicated that Defendant had made "same day, same payee, exact same amount" charges to the "court account" and his campaign account, raising the concern of "duplicate reimbursements." Id. at pp. 76-81, 84, 134. Vela asked Plaintiff for "his opinion, what did he think," and did not recall what Plaintiff told her. Id. at pp. 77, 82. Vela testified that she did not consider it Plaintiff's job duty to assist her in researching whether Defendant had violated the law, and that she did not ask Plaintiff to do any legal research on the issue. Id. at pp. 134-35. As she lacked "underlying data" for the records in her possession, Vela did not reach any conclusion about whether the records revealed any illegal activity or violations of the Texas Code of Judicial Conduct, and did not tell Plaintiff to report Defendant to anyone. Id. at pp. 82, 84, 86.

Plaintiff also provided testimony about Justice Vela's conversation with him, recalling that in early 2012, Vela called Plaintiff into her office during the workday and told him about the Chapter 22 fund records obtained through the open records request. (Dkt. No. 91, PLAINTIFF DEP. at pp. 21-23). Vela also told him that she had compared those records with Defendant's 2012 campaign finance records and had discovered that Defendant had taken "double reimbursements" from the two funds. Id. at pp. 24-26. Vela then asked Plaintiff for his opinion, in light of his past experience as a prosecutor, as to whether Defendant had committed any crime. Id. at p. 27. At the time, Plaintiff recalled hearing a radio story about a Texas state representative who "was caught taking double reimbursements, which constituted a crime." Id. at p. 31. Out of personal interest, Plaintiff had determined through an Internet search that the crime was "abuse of official capacity," and had looked up the crime in the Texas Penal Code. Id. On the basis of this recollection and the facts provided to him by Vela, Plaintiff offered his opinion that Defendant "may very well have committed the crime of abuse of official capacity." Id. at pp. 27-28, 33. Plaintiff testified that Vela did not ask him to report Defendant to the authorities. Id. at p. 39.

D. Plaintiff Sends Letters to Texas Supreme Court Chief Justice and State Commission on Judicial Conduct in October 2012

When Plaintiff began his employment with Justice Vela in 2007, he signed an "Oath of Briefing Attorney," sworn to and subscribed by Vela, which included the statement, "I recognize that I am subject to the provisions of the Code of Judicial Conduct and will observe the standards of fidelity and diligence prescribed." (Dkt. No. 91 at p. 497). Relevant to this case, the Texas Code of Judicial Conduct ("the Code") provides that "[a] judge shall comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary."Id. at p. 503. The Code also contains a section outlining Texas judges' "Disciplinary Responsibilities," among them that:

[a] judge who receives information clearly establishing that another judge has committed a violation of this Code shall take appropriate action. A judge having knowledge that another judge has committed a violation of this Code that raises a substantial question as to the other judge's fitness for office shall inform the State Commission on Judicial Conduct or take other appropriate action.

Id. at p. 506.

After his conversation with Justice Vela, Plaintiff was disturbed by the possibility that the sitting Chief Justice of the Thirteenth Court had violated Texas law. (Dkt. No. 91, PLAINTIFF DEP. at p. 43). He saw it as "a matter of tremendous public importance," explaining that "[i]f a chief justice is taking double reimbursements and violating the Penal Code, that's extremely important and it needs to be stopped, it needs to be investigated and, if necessary, prosecuted." Id. at pp. 43-44. Plaintiff felt that Vela had an obligation to report Defendant to the authorities and assumed that she would, but when he asked her in or around May or June 2012 whether she planned to do so, Vela responded that she did not because "it would look too political." Id. at pp. 44, 136, 157-58.

Plaintiff did not share Justice Vela's concern, and felt compelled to report Defendant. Id. at pp. 44, 157. He reasoned that "if it leaked out" that he made a report, and "if they tried to fire [him]," he needed to accumulate enough vacation pay to compensate him through the end of Vela's term in December 2012. Id. at pp. 135-37. After accumulating about two months of vacation pay, Plaintiff wrote to Wallace B. Jefferson, Chief Justice of the Texas Supreme Court, by letter dated October 10, 2012 and marked "confidential." (Dkt. No. 91, PLAINTIFF DEP. at pp. 44, 135-37; Dkt. No. 91 at pp. 556-57). Plaintiff explained what he knew of the Chapter 22 fund and the open records request, including the possibility that some documents responsive to the request had been destroyed. (Dkt. No. 91 at pp. 556-57). He also recounted his conversation with Vela regarding Defendant's receipt of double reimbursements from the Chapter 22 fund and Defendant's campaign fund, and suggested that Defendant may have committed the crime of abuse of official capacity under Texas Penal Code § 39.02. Id. at p. 557. Plaintiff stated, "I am reporting this information to you because I do not know who else to report it to." Id. at p. 556.

On October 23, 2012, the Supreme Court's General Counsel responded by directing Plaintiff to the State Commission on Judicial Conduct ("SCJC"). Id. at p. 558. Plaintiff then wrote to the SCJC in another "confidential" letter dated October 30, 2012, nearly identical in substance to his previous letter to Chief Justice Jefferson. Id. at pp. 559-60. On November 13, 2012, the SCJC responded that it had "received [Plaintiff's] complaints against two (2) Texas judges," that the complaints would receive a thorough review and investigation, and that the proceedings were confidential. Id. at p. 562.

E. Plaintiff Applies to Work in Volunteer Capacity

In December 2012, as Justice Vela's term on the Thirteenth Court was nearing its end, Plaintiff asked Justice Perkes if he could stay on as a volunteer for the early part of 2013. (Dkt. No. 91, PLAINTIFF DEP. at p. 137; PERKES DEP. at p. 22; Dkt. No. 94, Exh. 11). Perkes testified that "[a] lot of your staff attorneys in the court stay one or two, maybe three years," so he surmised that Plaintiff "was hoping a position would open up that he could eventually take." (Dkt. No. 91, PERKES DEP. at p. 23). On December 17, 2012, Perkes sent an email to Defendant informing him of Plaintiff's request and Perkes's desire "to facilitate [Plaintiff] in that role for that time period," using "the identical procedure that we use for unpaid, summer interns." (Dkt. No. 94, Exh. 11). Perkes asked for Defendant's assistance and Defendant responded that he would "check into this and review the policy considerations." Id.

Defendant testified that he consulted the Thirteenth Court's Chief Clerk, Dorian Ramirez, in order to determine "what were the pros and cons and if that had ever happened and what do we need to do." (Dkt. No. 91, DEFENDANT DEP. at pp. 21, 105-06; see RAMIREZ DEP. at p. 5). Ramirez ultimately recommended that the request be denied because Plaintiff would not be covered by workers' compensation insurance, and also because the Court lacked equipment for him. Id. at pp. 106-08. Perkes also spoke with Justice Benavides about Plaintiff's request, "[not] so much about Plaintiff" himself, but "more about...procedure in the court"-that is, whether "we want to have attorney interns working in the court[.]" (Dkt. No. 91, PERKES DEP. at pp. 176-77; see also Dkt. No. 94, Exh. 11). Benavides testified that she gave Perkes her opinion that the request should be denied because "[w]e've never had...lawyers that are unpaid interns that aren't particularly working for any chambers, and we didn't have a policy in place that would allow that to occur." (Dkt. No. 91, BENAVIDES DEP. at p. 43).

Justice Perkes testified to his understanding that Defendant spoke to all of the Justices, who "basically said no" because "[t]hey didn't want to create a new policy of having people come and volunteer on the court like that." (Dkt. No. 91, PERKES DEP. at pp. 22, 25-27). Therefore, Perkes "told [Plaintiff] no." Id. at p. 22. Perkes did not recall Defendant, Benavides, or anyone else making any complaints about Plaintiff personally or about his work product, and neither Defendant nor Benavides testified to any other reason for denying Plaintiff's request to work in a volunteer capacity. (Dkt. No. 91, PERKES DEP. at pp. 168-69, 179-83; DEFENDANT DEP. at p. 108; BENAVIDES DEP. at p. 44). Perkes testified to his opinion that Plaintiff was an "excellent attorney," that he "did a good job" on the opinions he wrote for the Court, that he "was always pleasant and polite," and that he "basically kept to himself, did his job." Id. at pp. 165-68.

Plaintiff testified that on January 2, 2013, he began volunteering at the Nueces County DA's Office, located in the same building as the Thirteenth Court, and that he was still a volunteer there as of his March 2017 deposition. (Dkt. No. 91, PLAINTIFF DEP. at p. 13; see PERKES DEP. at p. 199).

F. In 2013, Former Justice Vela Provides Information to SCJC and Learns of Plaintiff's Complaint

Justice Vela testified that in February 2013, she received a telephone call from SCJC investigator Royce LeMoine, who informed her that he was investigating Defendant's use of funds and wanted all of the information Vela had relating to this investigation. (Dkt. No. 91, VELA DEP. at pp. 44-45). Vela perceived LeMoine's questioning as "accusatory," "almost like...he was investigating [her]." Id. at p. 47. LeMoine did not tell Vela that a complaint had been filed with the SCJC, or who had filed it. Id. at p. 45. That same month, Vela responded by letter and enclosed numerous documents, including the records she had indicating Defendant's potential receipt of double reimbursements, correspondence relating to Vela and Perkes's audit request, and a complete copy of the Chapter 22 fund bank account records for fiscal years 2008, 2009, and 2010. (Dkt. No. 91, VELA DEP. at pp. 43-45; Dkt. No. 94, Exh. 21). Vela testified that she possibly copied the Texas Attorney General's ("AG") Office on her letter to the SCJC. (Dkt. No. 91, VELA DEP. at p. 94).

At some point in 2013, after Justice Vela sent the information to LeMoine, Plaintiff told Vela that he had filed a complaint with the SCJC. (Dkt. No. 91, VELA DEP. at pp. 46-47; PLAINTIFF DEP. at p. 71). Plaintiff testified that Vela called to tell him that someone had reported Defendant to the SCJC, at which point Plaintiff responded, "[W]ell, your Honor, it was me." (Dkt. No. 91, PLAINTIFF DEP. at p. 71).

G. Travis County DA's Office Initiates Investigation and Plaintiff Provides Information to DA's Office in April 2013 and April 2014

Travis County DA's Office records indicate that on March 7, 2013, the Texas AG's Office forwarded to the DA's Office a letter from Justice Vela reporting that Defendant "is improperly charged (sic) a taxpayer funded account while at the same time charging his campaign expense account, thus 'double dipping.' " (Dkt. No. 94, Exh. 22). On this basis, in April 2013 the DA's Office Special Prosecution/Public Integrity Unit opened a case to investigate the allegations. See id. Vela recalled that sometime after March 2013, she received a few calls from the Travis County DA's Office about the investigation. (Dkt. No. 91, VELA DEP. at pp. 95-100). She did not remember the substance of the conversations, nor whether she provided any documents to the DA's Office. Id.

After becoming aware of a possible investigation by the Travis County DA's Office, Plaintiff wrote to the DA's Office by letter dated April 30, 2013 and marked "confidential," disclosing that he had reported Defendant to the SCJC in October 2012, and offering information concerning additional double reimbursements that he had since learned of from former Chief Clerk Wilborn, as well as additional observations he had made while employed by the Thirteenth Court concerning the possible destruction of records responsive to the open records request. (Dkt. No. 91 at pp. 550-52). Plaintiff opined that any destruction of records could not have occurred without the knowledge and cooperation of the Thirteenth Court's Chief Staff Attorney, Cecile Gsanger, the Court's current Chief Clerk, Ramirez, and Mendez, who Plaintiff identified as "the Court's administrative assistant." Id. at p. 551. Almost one year later, on April 14, 2014, Plaintiff again wrote to the Travis County DA's Office to offer additional information given him by Wilborn concerning Defendant's receipt of double reimbursements. Id. at pp. 547-49.

H. Plaintiff Applies for Position as Justice Perkes's Senior Staff Attorney, Receives and Accepts Job Offer, and Is "Un-Hired"

1. Job Posting and Overview of Applicable Thirteenth Court Hiring Procedures and Administrative Rules

In the spring of 2014, Justice Perkes's senior staff attorney resigned and Perkes began looking for a replacement. (Dkt. No. 91, PERKES DEP. at pp. 30-31, 189-90; HOLLOWAY DEP. at pp. 34-35; LOCKWOOD DEP. at pp. 13-14). At the time, Perkes was the only Justice on the Thirteenth Court who had been elected as a Republican, and he remained based in Corpus Christi along with Justice Rodriguez. (Dkt. No. 91, LOCKWOOD DEP. at p. 37; PERKES DEP. at pp. 16-17; Dkt. No. 91 at p. 580). Justice Nora Longoria, who had replaced Justice Vela, officed primarily in Edinburg along with Defendant and Justices Benavides and Contreras. (Dkt. No. 91, PERKES DEP. at p. 17; DEFENDANT DEP. at p. 61; BENAVIDES DEP. at pp. 69-70; Dkt. No. 91 at pp. 582, 584).

At the time, the responsibility for drafting and posting the Thirteenth Court's job openings fell to Chief Clerk Ramirez and/or to Chief Staff Attorney Gsanger. (Dkt. No. 91, GSANGER DEP. at pp. 122-23; RAMIREZ DEP. at p. 11). The job posting for Perkes's senior attorney, which listed a start date of May or June 2014 and required the submission of applications to Ramirez, set forth "minimum qualifications" including "[t]hree to five years of prior legal experience" and "preferred qualifications" including "prior work for an appellate court or other appellate experience." (Dkt. No. 91 at pp. 501-02). The Thirteenth Court's Hiring Procedures in effect at the time instructed, in relevant part, that "[i]n order to be eligible for a particular position, an applicant must meet all of the minimum qualifications as noted on the job posting." Id. at p. 528. The Procedures further stated that "[a]n applicant does not have to have the preferred qualifications to be eligible for the position," although generally, "those applicants meeting the greater number of job qualifications should be more competitive." Id. The Procedures also provided:

Hiring decisions shall be made by the appropriate 'hiring official," as follows: Senior attorneys, briefing attorneys, and legal assistants shall be hired by the Justice to whom they are assigned. Deputy clerks shall be hired by the Clerk of the Court, upon the approval of a majority of the Court, en banc. All other employees shall be hired by a majority of the Court, en banc.

Id.

Among the Thirteenth Court's Administrative Rules approved by the Justices in 2011, Rule 21 provided that "[e]ach justice shall have one legal assistant, one senior staff attorney and one junior staff attorney or briefing attorney," and that "[e]ach justice shall be solely responsible for all employment and management decisions regarding his or her staff." (Dkt. No. 91 at p. 524, Rule 21-Supervision of Staff; see also Dkt. No. 94, Exh. 29). Rule 23, the final rule, allowed for amendment or temporary suspension of the Administrative Rules "[b]y majority vote of the Court en banc[.]" (Dkt. No. 91 at p. 525, Rule 23-Suspension and Amendment of the Rules).

2. Plaintiff Applies for the Job

Justice Perkes testified that although April was "not a good time to be looking for candidates" for the senior attorney position, and the pool of applicants was small, he had inherited a backlog of work from his predecessor Justice and believed it urgent to fill the position. (Dkt. No. 91, PERKES DEP. at pp. 30-31, 169-70, 240-41). Plaintiff was among those who applied for the job. (Dkt. No. 91, PLAINTIFF DEP. at pp. 153-54). Perkes's entire chambers-the outgoing senior attorney, junior staff attorney Daniel Lockwood, and legal assistant Caylie Holloway-participated in reviewing the applications submitted, and agreed that Plaintiff was the top candidate. (Dkt. No. 91, PERKES DEP. at pp. 39-40, 191-93; HOLLOWAY DEP. at pp. 35-36, 39; LOCKWOOD DEP. at pp. 14-15). Perkes testified that the other applicants "just weren't even close"-that "without a doubt," there was "a mile between number one and number two." (Dkt. No. 91, PERKES DEP. at pp. 40, 192-93, 196). Perkes had observed Plaintiff working with Justice Vela and thought he was someone with whom Perkes could work closely. Id. at p. 196. Perkes also testified that despite Plaintiff's visual impairment, "[h]e got product out pretty fast," and that perhaps because of that impairment, Plaintiff "had one of those minds" that was "[e]nhanced." Id. at p. 198. Perkes explained:

You walk in and talk to [Plaintiff] about a case or a particular issue, and he would pop up, 'It's so-and-so case.' Bing, bing, bing. And there are not many attorneys this day and age that can do that. [He] had a good knack for being able to converse that way.

Id.

Justice Perkes's junior attorney Lockwood, whose employment overlapped with Plaintiff's employment from August through December 2012, testified that he never heard any criticisms of Plaintiff or his work product during that time. (Dkt. No. 91, LOCKWOOD DEP. at p. 11). Lockwood described Plaintiff as "very astute," with "a very good mind for criminal law especially," and testified that he had periodically asked for and received assistance from Plaintiff when Lockwood was "spinning [his] wheels on a particular assignment." Id. at pp. 10-11. Lockwood testified that based on what he knew, Plaintiff was qualified for the position of Perkes's senior attorney. Id. at pp. 14-15.

3. Justice Benavides Expresses Concerns about Plaintiff's Potential Hiring

Justice Benavides testified that even before the job posting, she knew that Justice Perkes was looking for a senior attorney. (Dkt. No. 91, BENAVIDES DEP. at p. 70). When she learned that Perkes intended to interview Plaintiff for the position, she called Perkes "because [she] didn't want him to hire [Plaintiff]." Id. at p. 71. According to Perkes, Defendant first informed him that Benavides had issues with Plaintiff, at which point Perkes had a meeting with Benavides to discuss those concerns. (Dkt. No. 91, PERKES DEP. at pp. 42, 45). Perkes explained that "if somebody's saying they have a problem with [an attorney] who...would have been my senior staff attorney..., I needed to know about it and if it could be resolved, so we sat down and talked." Id. at p. 44. Perkes described the Thirteenth Court at the time as "very political" and "hostile," and testified that he "didn't want to create additional hostilities." Id. at pp. 43-44.

Justice Benavides testified that she and Justice Vela had started at the Thirteenth Court at the same time, and that she became familiar with Plaintiff's work through the circulation process used to review and edit the Court's opinions. (Dkt. No. 91, BENAVIDES DEP. at pp. 15-26). Generally, the process begins with the random assignment of a case to a panel of three Justices, one of whom is assigned as the "writing author." Id. at p. 19. In the stage of the process known as "first circulation," that Justice's initial draft of the opinion circulates among all of the panel Justices' attorneys, who edit the opinion before sending it to "second circulation," i.e. , review by Chief Staff Attorney Gsanger. Id. The opinion then goes to "third circulation" among the three Justices on the panel. Id. If Benavides had an issue with an opinion, either because her attorneys "red-flagged" it at first circulation or based on her own review at third circulation, she would talk to the writing Justice and/or the attorney who wrote the opinion for that Justice. Id. at pp. 21-22.

By the end of Justice Vela's term, Justice Benavides had developed the following opinions regarding Plaintiff and his work product: (1) Plaintiff had a tendency to write opinions that "did not fully flush out all the facts and issues in a case"; (2) Plaintiff was "not a team player" in the circulation process, in that he "did not participate in the editing process in a manner that was efficient for the Court"; (3) he had an arrogant attitude toward Benavides and was not open to criticism. Id. at pp. 27-30.

Based on her observations, Justice Benavides implemented a special policy within her chambers for when Plaintiff was the attorney writing an opinion. Id. at pp. 37-40. At third circulation, Benavides would require her staff to provide her with the first circulation edits so that she could evaluate whether her attorneys' recommendations were being followed. Id. at p. 38. Benavides testified that her attorneys' edits were not generally included, in which case she would advise Justice Vela's chambers that the edits needed to be included before she would "sign off" on the opinion. Id. at p. 39. "Sometimes they would do them, sometimes they wouldn't," and if her attorneys' edits were not included, Benavides would then determine whether to write a separate concurrence or a dissent, or to just "let it go" and sign off on the opinion. Id. Benavides testified that this policy caused delays in the circulation process. Id. at p. 40.

Justice Benavides testified that she raised all of these issues when she spoke with Perkes, and that she also expressed her concern that Plaintiff "only handled criminal matters, and Justice Perkes'[s] docket was behind and [she] thought that would only make [his] docket further behind." Id. at p. 72. At the end of the conversation, Benavides thought she had convinced Perkes not to hire Plaintiff. Id. at p. 74. She suggested re-posting the position, and also offered to reach out to other lawyers to find new candidates. Id. Perkes, however, left the conversation with the understanding that he could address and resolve Benavides's concerns with Plaintiff, and that in such case Benavides did not oppose Plaintiff's hiring. (Dkt. No. 91, PERKES DEP. at pp. 43-44).

Justice Benavides testified that she also spoke with Defendant and Justices Contreras and Longoria about Plaintiff's potential hiring, but did not detail for them the issues she had with Plaintiff; she merely told them that she had concerns and had raised those concerns with Justice Perkes. (Dkt. No. 91, BENAVIDES DEP. at pp. 75-78).

4. Justice Perkes Interviews and Hires Plaintiff

Plaintiff testified that he had an informal interview with Justice Perkes during the first week of April, and that "the first words out of [Perkes's] mouth were, 'I heard that you reported the Chief to the State Commission on Judicial Conduct, how is that going?' " (Dkt. No. 91, PLAINTIFF DEP. at pp. 74, 120). Plaintiff confirmed that he had reported Defendant to the SCJC and relayed what Justice Vela had told him about Defendant's potential receipt of double reimbursements. Id. at pp. 74-75.

Plaintiff recalled that his formal interview occurred on May 2, 2014, whereas Justice Perkes remembered interviewing Plaintiff only once, on that date. (Dkt. No. 91, PLAINTIFF DEP. at p. 129; PERKES DEP. at pp. 32-33, 40-42). Perkes testified that during the interview process, he never asked Plaintiff whether he had filed a complaint against Defendant. (Dkt. No. 91, PERKES DEP. at p. 33). Perkes recalled that he spent time talking to Plaintiff about Justice Benavides's concerns, and that he "really wanted to impress upon [Plaintiff] that I'm hiring him with those things in mind, and we're going to have to really work on those things." Id. At the conclusion of the interview, Perkes offered Plaintiff the job, and Plaintiff accepted it. (Dkt. No. 91, PLAINTIFF DEP. at p. 129; PERKES DEP. at p. 201). According to Plaintiff, Perkes instructed him to tell Chief Clerk Ramirez that he had been hired. (Dkt. No. 91, PLAINTIFF DEP. at p. 129).

5. Plaintiff Is "Un-Hired"

a. After Defendant Learns of Hiring, He Asks Chief Staff Attorney to Look into Plaintiff's Opinion History

On the morning of May 2, 2014, Ramirez sent an email to Justice Perkes, copying Defendant and Mendez, stating that Plaintiff had just come to her office asking for the amount of his gross salary. (Dkt. No. 91 at p. 499). Ramirez asked, "Am I to assume that [Plaintiff] has been hired for the position?" Id. Ramirez forwarded this email to Chief Staff Attorney Gsanger, who responded, "Crap!" Id.

Several minutes later, Justice Perkes responded by email, "Yes, I am hiring [Plaintiff] as my Senior Staff Attorney." Id. at p. 500. Perkes copied his staff and Gsanger on his response, and Ramirez forwarded the response to Defendant. Id. Defendant testified that he then called Ramirez and Gsanger, who both expressed concerns about whether Plaintiff was qualified for the position. (Dkt. No. 91, DEFENDANT DEP. at pp. 123-24, 134-36; see also GSANGER DEP. at pp. 155-56; RAMIREZ DEP. at pp. 42-43). Ramirez and Gsanger each testified at length about their concerns, some of which resembled the concerns raised by Justice Benavides. See (Dkt. No. 91, RAMIREZ DEP. at pp. 43-63; GSANGER DEP. at pp. 63-114). According to Gsanger, she provided "the same detail" to Defendant. (Dkt. No. 91, GSANGER DEP. at p. 156). Ramirez remembered telling Defendant that Plaintiff "was unprofessional, he was difficult to work with, and he was inappropriate at times." (Dkt. No. 91, RAMIREZ DEP. at pp. 43-44).

According to Defendant, it was "for [him] to decide what was going to be the salary," so he "had to decide whether or not [Plaintiff] was qualified...and competent for the position to make that final decision." (Dkt. No. 91, DEFENDANT DEP. at p. 139). Defendant testified that a Justice's senior attorney "need[s] to understand and know how to do criminal cases and civil cases," and that in order to determine whether Plaintiff qualified for the job, Defendant asked Gsanger to look into Plaintiff's opinion history. Id. at pp. 139-40. Gsanger recalled Defendant asking her to verify whether Plaintiff had written only criminal opinions, and also that they discussed Justice Perkes's docket and its needs. (Dkt. No. 91, GSANGER DEP. at pp. 156-58).

That same afternoon, Gsanger responded to Defendant's request via email marked "confidential," noting that she had only been able to retrieve data from fiscal year 2009 through the end of Justice Vela's term, and that according to this data, Plaintiff "did not write any civil cases during this period of time-all 132 cases were criminal." (Dkt. No. 91 at p. 516; see also pp. 517-22). Gsanger's email also noted that Defendant "had asked about the other applicants for the position," and that she thought that Ramirez could forward the applications to Defendant if desired. Id. at p. 516.

b. Defendant Speaks with Justice Perkes

Defendant testified that he also called Justice Perkes and "explained to him [Plaintiff's]...lack of cooperation being a team player..., following up on the duties of edits," and also that Defendant "had done some research and [Plaintiff] only did criminal cases." (Dkt. No. 91, DEFENDANT DEP. at pp. 144-45). Defendant reminded Perkes of his repeated requests for help with the civil docket, leading Defendant to believe that Perkes "would be looking for...somebody who's strong on civil[.]" Id. at p. 146. Defendant admitted that Perkes still wanted to hire Plaintiff, believing that he could correct any issues with his managerial style. Id. Defendant therefore suggested that they "take it en banc" and "see what the rest of the judges...think about it," and Perkes agreed. (Dkt. No. 91, DEFENDANT DEP. at p. 147; see also PERKES DEP. at p. 278).

c. Defendant Speaks with Other Justices

Defendant testified that at that point, he had already spoken with Justice Benavides and "[knew] what...her vote [was] going to be." (Dkt. No. 91, DEFENDANT DEP. at p. 148). He then spoke with each of the other three Justices, explaining to them that Justice Perkes wanted to hire Plaintiff, and that Defendant "personally [had] some problems with it" and believed that Plaintiff was not qualified for the position. Id. at pp. 148-49, 152. According to Defendant, all of the Justices told him, "Well, we have problem[s] with him too," and "our opinion is that it wouldn't be a good idea." Id. at p. 149.

Justice Rodriguez, who had served on the Thirteenth Court since 1995, and whose principal office was in Corpus Christi, stated in her sworn declaration that by the time Plaintiff left the Court at the end of 2012, she "had developed a general concern about the thoroughness of the analysis presented in his legal opinions," and that she "felt obliged to give [Plaintiff's opinions] extra attention because [she] no longer had confidence in their depth or accuracy." (Dkt. No. 94 at p. 580). Rodriguez also attested that on the basis of her observations, she believed that Plaintiff "did not fully participate in the circulation process," "often did not incorporate the edits of other staff attorneys," and "rarely offered his own edits." Id. She also felt that Plaintiff "was not a good team player," "always seemed to have a chip on his shoulder," and "often acted in an arrogant manner-as though he believed he knew more than the Justices on the Court." Id. Rodriguez remembered Defendant calling to ask her opinion about Plaintiff's hiring, and that she "told him [she] was absolutely against it and if there was any way to prevent him from coming back, [she] was all for it." Id.

Justice Longoria, whose term with the Thirteenth Court began in 2013, and whose principal office was in Edinburg, attested in her declaration that she participated in a discussion with Defendant and Justices Benavides and Contreras in which Benavides "voiced serious misgivings about whether [Plaintiff] would be a good hire, particularly given that Justice Perkes was already behind on his docket." Id. at p. 582. Longoria also recalled Benavides expressing "specific concerns regarding [Plaintiff's] refusal to work on civil cases and his failure to both make edits on other lawyers' opinions and...to incorporate other staff attorneys' edits in draft opinions." Id. Since she had never worked with Plaintiff, Longoria "deferred to the majority, which [she] understood to be against the hiring decision." Id.

Justice Contreras, who had served on the Thirteenth Court since 2002, and who at the time was based in Edinburg, stated in her declaration that she learned of Plaintiff's potential hiring from Justice Benavides, who reported that she had expressed concerns about the hiring to Justice Perkes. Id. at p. 584. Those concerns were that Plaintiff "had not participated fully in the circulation process, that he would not take edits when other staff attorneys commented on his work, and that he was not a team player." Id. Contreras "shared Justice Benavides's concerns because [she] had witnessed the same issues with [Plaintiff's] work performance," and therefore "when asked by [Defendant]," she told him that she thought Plaintiff should not be hired. Id.

Each of the Justices stated that Defendant did not attempt to sway her opinion regarding Plaintiff's hiring. Id. at pp. 581, 582, 584.

d. Defendant Notifies Justice Perkes That He and Other Justices Do Not Approve of Plaintiff's Hiring, and Perkes's Office Informs Plaintiff That He No Longer Has a Job

On the morning of May 6, 2014, Justice Perkes notified Defendant by email that it was his current senior attorney's last day of work, and that Perkes would "need to move asap re [Plaintiff]," especially since he had already offered Plaintiff the job. (Dkt. No. 91 at p. 565). Perkes stated his belief that Plaintiff's work ethic and Perkes's style of management would "move these cases along" and meet the concerns discussed with Benavides, and subsequently with Defendant. Id. Perkes also informed Defendant that "none of the other candidates have any court experience and would require training and downtime," and therefore in the event that Perkes was "not allowed to bring [Plaintiff] on board," he would "need some assistance with [his] docket." Id.

That same hour, Defendant emailed Ramirez and Gsanger, "Can you please call me to address my decision on [Plaintiff]." (Dkt. No. 94, Exh. 32). In his ensuing conversation with Ramirez, Defendant asked her to draft a response to Justice Perkes based on that conversation, which she did. (Dkt. No. 91, DEFENDANT DEP. at pp. 192-93; RAMIREZ DEP. at 100-03; Dkt. No. 94, Exh. 33). Later that afternoon, Defendant emailed the response to Perkes: "After due consideration and after consulting with all of the other justices, we do not approve of your request and recommendation to hire [Plaintiff]." (Dkt. No. 91 at p. 565). The response also offered Defendant's and the other Justices' assistance in reviewing applications and interviewing potential candidates for the position. Id.

Within minutes, Justice Perkes responded by email, "I would request assistance then with respect to cases to which I have been assigned," suggesting "two cases per Justice." Id. at p. 566. He also suggested that since "[t]he applicant pool of experienced attorneys is lacking at this time," "[t]he best that we can do is re-post," and stated his intention to forward to Defendant the applications received thus far. Id. Immediately thereafter, Perkes forwarded his initial email and Defendant's response to Holloway, asking her to "call the OCA and find out who I would need to speak with regarding staff attorney hires," and to do it "ASAP." (Dkt. No. 94, Exh. 35). That same hour, Defendant emailed Perkes that the posting was still open, that Defendant would be happy to assist with the hiring process, and that the Justices would discuss the status of Perkes's docket at the next conference. (Dkt. No. 91 at p. 567).

Justice Perkes acknowledged that under the Court's Administrative Rules, he did not need the other Justices' approval to hire anyone, but testified that "our rules tended to be fluid in those situations, and if there are five judges against me, that's a quick vote." (Dkt. No. 91, PERKES DEP. at pp. 47-48). He opined that "[t]he effect of what the court did was to suspend their rules" under Rule 23-a position also taken by Gsanger, who testified to her understanding that a majority of the Court en banc decided to temporarily suspend or amend Rule 21, which allows a Justice to hire his own staff, with respect to the hiring of Plaintiff. (Dkt. No. 91, PERKES DEP. at pp. 114-15; GSANGER DEP. at pp. 44-47). Even so, Perkes testified that he "didn't believe in the total veracity" of Defendant's statement that all of the other Justices had disapproved of Plaintiff's hiring. (Dkt. No. 91, PERKES DEP. at p. 72). Defendant himself disagreed that Rule 23 had been invoked in this situation, characterizing his discussions with the other Justices as "trying to learn the facts before I make a final decision...on the salary [and on] whether...I need to object to it or not." (Dkt. No. 91, DEFENDANT DEP. at pp. 143-44).

Justice Perkes testified that he "was steadfast in favor" of Plaintiff, and that in his view, his decision to hire Plaintiff was "countermanded" and "rescinded." (Dkt. No. 91, PERKES DEP. at pp. 82, 233, 290). At that point, "it put [Perkes] in substantial difficulty keeping the docket up while [he] had to go through the whole [hiring] process again." Id. at p. 233. He testified that "the only thing [he] could think of [was to] write a letter to the chief justice of the Supreme Court or send a letter to the OCA, ...neither of which really had jurisdiction over the local court." Id. at p. 53. He remembered deliberating with Holloway on whether to contact the OCA, and in the end concluded, "This is already a done issue. Move on." Id. at p. 48.

On May 8, 2014, Holloway called Plaintiff to tell him that he no longer had a position with Justice Perkes. (Dkt. No. 91, PLAINTIFF DEP. at pp. 103-104; HOLLOWAY DEP. at p. 65). Holloway felt "horrible" about making the call and "didn't want to do it," explaining that she "felt bad for [Plaintiff]" and believed that "[t]here was no logical reason for him not to be hired." (Dkt. No. 91, HOLLOWAY DEP. at p. 66).

I. Testimony Concerning Defendant's Intervention in Other Justices' Hiring Decisions

Defendant recalled two other occasions when he intervened in another Justice's hiring decisions. (Dkt. No. 91, DEFENDANT DEP. at pp. 221-22). The first time, newly-elected Justice Longoria "didn't have a good pool" of staff attorney applicants and wanted to hire two "rookie" attorneys-one "right out of law school" and one who had only been an attorney for a few months-for the senior and junior attorney positions. Id. at pp. 169-70. Defendant told Longoria "that it was not a good idea, that she was going to have problems," explaining in his testimony that a senior attorney without the minimum three-to-five years' legal experience was "not going to be able to...do the job." Id. at pp. 171-73. Defendant therefore suggested that Longoria find a senior attorney among the other Justices' junior attorneys with requisite experience, which she did. Id. at p. 171.

The second time, when Justice Longoria's senior attorney left and she had selected a new hire, Defendant asked Gsanger to check the applicant's references and Gsanger "came back with some negative reviews"-namely, that the applicant was "not a team player," "disrespectful," and "not very dependable." (Dkt. No. 91, DEFENDANT DEP. at pp. 218-21). Defendant then relayed this information to Justice Longoria, who decided to hire someone else. Id. at p. 221.

J. After Plaintiff Is "Un-Hired," Justice Perkes Has Discussions with Former Justice Vela, His Chambers, and Plaintiff

In an exchange of text messages on May 9, 2014, Justices Perkes and Vela discussed the intervention in Plaintiff's hiring. (Dkt. No. 91, VELA DEP. at p. 112; PERKES DEP. at pp. 65-66; Dkt. No. 91 at pp. 568-79). Vela recalled that she reached out to Perkes after Plaintiff called to tell her that "he got unhired," and that he "was confused and didn't understand what happened." (Dkt. No. 91, VELA DEP. at pp. 110-11). The following text exchange ensued:

Justice Vela : "Hey greg, what happened with Bruce-he called and told me he wasn't going to work with you after all? Did something happen that made you change your mind? Don't worry I won't tell him[.]"

Justice Perkes : "Nope, Roy went to war over Bruce and all of the rest of the justices...[k]owtowed to Roy's wishes. Nothing I could do other than start lengthy process with OCA, with unpredictable results...."

Justice Vela : "Why is Roy against him? Didn't know he even knew he existed[.]"

Justice Perkes : "You got me. However, we had a big argument over this. The only thing that I can think of is that he got wind of Bruce and the investigation. Considering the timing of Roy's intervention, Dorian [Ramirez] may have also played a part. It wasn't pretty. She's Roy's eyes and ears up here [in the Corpus Christi office], as you know."

Justice Vela : "Dorian? What's with her? Does she not like Bruce? So what reason did roy give?"

Justice Perkes : "Not part of the team, did [not] make edits to other justices opinions, solely knows how to work on criminal matters, not deep enough research of the issues (merely copied state's briefs)."

Justice Vela : "Wow..I remember they [made] such a big deal about how each chambers could hire whoever they want... It has to be more than that..Dorian or Cecile [Gsanger] might suspect Bruce of starting the investigation[.]"

Justice Perkes : "My gut feeling, but don't know. At end, there are no rules except what majority wants them to be at that particular moment. But you know that[.]"

Justice Vela : "Poor Bruce."

Justice Perkes : "Please let him know that it was not my decision. I had already hired and done all that I was required to do."

Justice Vela : "Ok, do [you] want me to tell him why-I'm sure he will ask[.]"

Justice Perkes : "What do you think??? I don't have a problem [with] him knowing."

...

Justice Vela : "Also, they may not like the fact that we (Bruce and me) got them reversed so much! Especially roy and Gina [Benavides] on the criminal cases. And Gina roy and dori [Contreras] on civil[.]"

Justice Perkes : "I agree!"

(Dkt. No. 91 at pp. 568-79). Vela believed that the text exchange constituted the only discussion she had with Perkes about the withdrawal of Plaintiff's job offer. (Dkt. No. 91, VELA DEP. at pp. 117-18). With regard to the reasons relayed to her for why Defendant opposed Plaintiff's hiring, Vela testified that no one had expressed these concerns to her when she was on the Court, and in fact offered testimony discounting the concerns about Plaintiff and his work product that were noted in the text exchange and by other deponents in this case. Id. at pp. 112-13, 123-32. Perkes also testified that he had "never heard of anything negative at all with regard to [the] personality of [Plaintiff]," and that