Jason Dusterhoft was an Assistant Chief of the Austin Police Department. On July 14, 2017, he met with Chief Brian Manley and Assistant City Manager Rey Arellano, who informed him that he was being demoted for two non-policy issues. Dusterhoft then raised several concerns he had with the Department, including what “he believed were numerous criminal and serious policy violations being committed by Austin police officers and Chief Manley himself.” Manley and Arellano met briefly in private and told Dusterhoft that he would not be demoted. However, three days later, Manley told Dusterhoft that he changed his mind and demoted Dusterhoft to Commander, effective July 30, 2017.
About a year later, Dusterhoft’s ex-girlfriend accused him of domestic violence. Manley investigated the allegations, which concluded in Dusterhoft’s termination in December 2018. Dusterhoft unsuccessfully challenged his termination at arbitration, and thereafter sued the City, Manley, and other City officials for demoting and terminating him in retaliation for exercising his First Amendment rights, specifically, for the issues he raised in the July 2017 meeting. The defendants successfully moved to dismiss the claim at federal district court, and Dusterhoft appealed to the Fifth Circuit Court of Appeals, which affirmed.
For Dusterhoft to prevail on his claim, he would have to prove that he was speaking on a matter of public concern, in the role of a private citizen. The Fifth Circuit noted that even if Dusterhoft had proven that he was speaking on a matter of public concern, his claim would still fail because he was not speaking as a private citizen. The Court looked at the circumstances of the July 2017 meeting, in which Dusterhoft was called into a private room by high-ranking City officials to discuss a personnel issue.
This is not the type of context in which a private citizen would be invited to raise issues of City management. Rather, the Court noted that “it is undisputed that Dusterhoft attended the July 2017 meeting in his role as a police officer to discuss his employment status. This context indicates that he spoke as a public employee.” Additionally, Dusterhoft only raised the issues he discussed at the meeting in response to his pending demotion. The Court held that “this type of speech is not the type typically engaged in by private citizens.”
The Court rejected Dusterhoft’s argument that he spoke as a private citizen because Arellano was present at the July 2017 meeting, and Arellano was outside of his chain of command. However, Arellano as the Assistant City Manager was internal to the police department because he was a City official who supervised Manley and was clearly involved in the decision to demote Dusterhoft because he conferred privately with Manley. Accordingly, the Court affirmed the dismissal of Dusterhoft’s First Amendment retaliation claim.
Dusterhoft v. City of Austin, 2023 WL 6785842 (5th Cir. 2023).