Reported / Citable
Background
Donna Lee Fisher served for about nine years as Freeport’s Human Resources Director. After the City fired its former city manager, Jerry Lance Petty, Petty sought unemployment benefits. Fisher was identified as a material witness in the Texas Workforce Commission hearing on Petty’s claim, but the hearing was continued before she testified.
During the continuance, Fisher alleged that the City’s lawyer warned two other prospective witnesses about possible personal legal consequences for supporting Petty, and that councilmember Jeffery Michael Peña publicly attacked their anticipated testimony. City Manager Danielle Kelly then placed Fisher on paid administrative leave while the City reviewed HR payroll and benefits administration. The City later audited those functions and fired Fisher based on its findings.
The Court’s Holding
Magistrate Judge Andrew M. Edison recommended granting the defendants’ motion to dismiss Fisher’s federal claims. Fisher did not allege that she actually testified at the unemployment hearing, and anticipated testimony or mere attendance at a hearing was not protected First Amendment speech. Her allegations also did not plausibly show that the City acted to prevent her from testifying.
The recommendation also concluded that Fisher failed to state a stigma-plus due-process claim. Such a claim lies against the government employer rather than an individual official, and Fisher had not alleged that she requested a name-clearing hearing from the City. Because all federal claims should be dismissed, the magistrate judge recommended declining supplemental jurisdiction over Peña’s Texas defamation claim and dismissing it without prejudice. Fisher would receive two weeks after adoption of the recommendation to amend her complaint.
Key Takeaways
- Anticipated but unspoken testimony does not itself constitute protected First Amendment speech.
- A public employee alleging stigma-plus must request a name-clearing hearing from the employing government body.
- The recommendation would dismiss the state defamation claim without prejudice after dismissal of the federal claims.
Why It Matters
The recommendation underscores that public-employment retaliation claims based on testimony require allegations of actual protected expression, not simply an expectation that an employee might testify. It also reinforces the procedural prerequisites for a liberty-interest claim based on allegedly stigmatizing reasons for termination.
This is a memorandum and recommendation, not a final district-court ruling. The parties have 14 days after service to object.