Culbertson v. Lykos

What This Case Is About

Culbertson v. Lykos is a complex First Amendment retaliation case involving former Houston crime lab employees who alleged they lost their jobs because they publicly criticized the reliability of the Houston Police Department’s breath alcohol testing (BAT) equipment. The Fifth Circuit partially reversed the district court’s dismissal, allowing claims against Harris County to proceed but granting qualified immunity to the individual defendant.

The Facts

Amanda Culbertson and Jorge Wong were technical supervisors at the Houston Police Department crime lab who became concerned about the reliability of the department’s breath alcohol testing vans. After they resigned from HPD, both went to work for Lone Star College, which had a long-standing contract with Harris County to provide technical supervisors for the Harris County Sheriff’s Office’s breath testing program.

Culbertson testified in criminal cases about problems with the BAT equipment, and both she and Wong were quoted in newspaper articles criticizing the reliability of the testing results. They alleged that Harris County District Attorney Pat Lykos and her assistant, Rachel Palmer, waged a retaliatory campaign against them — meeting privately with representatives of the Harris County Commissioners Court to discredit them and recommending that the county transfer the breath testing contract from Lone Star College to the Texas Department of Public Safety.

The Commissioners Court ultimately approved a budget that transferred the contract away from Lone Star, and Lone Star subsequently terminated Culbertson and Wong. They filed suit under § 1983, alleging First Amendment retaliation against Harris County, Lykos in her official capacity, and Palmer in both her official and individual capacities.

What the Court Decided

The Fifth Circuit reached several conclusions:

Harris County: The court reversed dismissal of the claims against Harris County based on the theory that the Commissioners Court ratified the retaliatory recommendations. Under City of St. Louis v. Praprotnik, when a final policymaker approves a subordinate’s recommendation and the subordinate’s reasoning, that constitutes ratification chargeable to the municipality. The complaint plausibly alleged that the Commissioners knew about the retaliatory motives behind the recommendation and approved them.

Lykos (official capacity): Dismissed. The district attorney was not a final policymaker with respect to county contracting decisions — that authority belonged to the Commissioners Court.

Palmer (individual capacity): Dismissed on qualified immunity. The court found it was unsettled whether a non-final-decision-maker who merely recommends adverse action can be individually liable for First Amendment retaliation. Some Fifth Circuit precedent suggested only final decision-makers can be liable, creating sufficient legal uncertainty to warrant qualified immunity.

Tortious interference: The court reversed dismissal of the state-law tortious interference with contract claims against Palmer, finding the complaint adequately alleged intent and causation.

Texas Citizens Participation Act (TCPA): The court reversed the TCPA dismissal, holding that Palmer could not use the TCPA while simultaneously denying making the communications at issue.

Why This Case Matters for Your § 1983 Case

Culbertson v. Lykos addresses several important aspects of § 1983 litigation:

• Ratification theory can establish municipal liability. When a final policymaking body approves a subordinate’s recommendation knowing the retaliatory motives behind it, the municipality can be held liable under Monell.

• Public employee speech on matters of public concern is protected. Criticism of government equipment reliability is speech on a matter of public concern. Even former employees and government contractors retain First Amendment protections.

• Indirect causation can suffice. The fact that Lone Star — not Harris County — technically terminated the plaintiffs did not break the causal chain. Government use of economic pressure on a contractor to achieve termination of disfavored employees can satisfy causation.

• Qualified immunity protects in unsettled areas. When it is genuinely unclear whether a particular type of conduct violates clearly established law, officers and officials benefit from qualified immunity.

Key Takeaway

Culbertson v. Lykos demonstrates that government retaliation for protected speech can be challenged even when the adverse action comes indirectly through a chain of decisions. If a final policymaker ratifies a retaliatory recommendation with knowledge of its improper motives, the municipality can be held liable. However, individual officials who merely recommend adverse action — without being the final decision-maker — may be protected by qualified immunity in this unsettled area of law.