7-21 Weslaco Lawsuit

Page 1 of 20
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
Page 2 of 20

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 plaintiffs 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, defendants 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.
Page 3 of 20

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.).
Page 4 of 20

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.

Page 5 of 20

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 Weslacos
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 Chiefs 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 Departments 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.
Page 6 of 20

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;
Page 7 of 20

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 Chiefs 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.

Page 8 of 20

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 classifications
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. Mezas voluntary transfer and promotion to the new classification of
Administrative Sergeant violates the CBA.
4
As per the Interim Chiefs 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. Mezas 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. Mezas 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.
Page 9 of 20

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 CHIEFS 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
Page 10 of 20

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 Managers 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 Chiefs 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
Page 11 of 20

each fiscal year. The request requires the City Managers approval in writing.
6
Section 2.07(F),
provides that the City Managers 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.
Page 12 of 20

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 Chiefs intentional and in-
bad-faith conduct.
34. Members of the WMPU want to exercise their First Amendment Rights. However, the
removal of assignments, Sgt. Mezas 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 unions 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 plaintiffs 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. Defendants 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.
Page 13 of 20

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 defendants actions;

c. The mental/emotional pain and suffering that plaintiffs have experienced and are
reasonably certain to experience in the future;

d. Nominal damages.

Page 14 of 20

PUNITIVE DAMAGES

39. Defendants conduct was accompanied by ill will or spite, or was done for the purpose of
injuring plaintiffs. Defendants 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 Act
8
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 employees 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),
Page 15 of 20

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 plaintiffs speech involved a matter of public concern;
c. That the plaintiffs interest in speaking outweighed the governmental defendants
interest in promoting efficiency; and
d. That the protected speech motivated the defendants 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 fromtaking 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.
Page 16 of 20

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 Pickering
9
balance. Id.; Moreno at 3 (citing Coughlin v. Lee,
946 F.2d 1152, 1158 (5th Cir. 1991)(A public employees 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 officials 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 employees 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).
Page 17 of 20

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
Page 18 of 20

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 plaintiffs 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
Page 19 of 20

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 attorneys 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.

Page 20 of 20

Respectfully submitted,

DAVID WILLIS, P.C.
1534 E. 6
th
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.


7-21 Weslaco Lawsuit

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

7-21 Weslaco Lawsuit

Uploaded by

Copyright:

Available Formats

Page 1 of 20

IN THE UNITED STATES DISTRICT COURT

You might also like