UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-41387
BENNIE J. BROWN,
Plaintiff-Appellee,
versus
KILGORE JUNIOR COLLEGE, ET AL.,
Defendants,
WILLIAM M. HOLDA, President, Kilgore College, individually and in official capacity; GERALD M. STANGLIN, Vice President of Instruction, Kilgore College, individually and in official capacity,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court for the Eastern District of Texas (6:99-CV-464) _________________________________________________________________ June 26, 2002
Before DUHÉ, BARKSDALE, and DENNIS, Circuit Judges.
RHESA HAWKINS BARKSDALE, Circuit Judge:*
The principal issue in this interlocutory appeal from a
summary judgment denial of qualified immunity is whether there was
a causal connection between the claimed First Amendment protected
activity of Plaintiff Bennie J. Brown and the conduct of Defendants
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. William M. Holda and Gerald M. Stanglin, in their individual
capacities (Individual Defendants). REVERSED and REMANDED.
I.
Brown is a female faculty member of Kilgore College, a
community college district organized under the TEX. EDUC. CODE §
130.001 et seq. (Vernon 1991), and a unit of local government, TEX.
CIV. PRAC. & REM. CODE § 102.001(2) (Vernon 1997). Brown has been a
member of the English faculty since 1969, holding teaching and
administrative positions primarily in the English and Reading
department.
Holda has served as Kilgore President since 1996. Prior to
then, he was Dean of Admissions and Registrar there for six years.
And, he was an instructor at Kilgore for 15 years before being made
Dean.
In February 1997, Stanglin was hired as Kilgore’s Vice
President of Instruction. Prior to then coming to Kilgore, he was
a dean at Cedar Valley College in the Dallas County Community
College District.
In 1990, Brown expressed an opinion on a matter involving a
Kilgore trustee’s son who, along with approximately 40 other
students, had failed an English exit test. Then Kilgore President
Woodruff reinstated the students. (He left office in early 1993.)
Brown felt the situation was resolved in an “unsatisfactory” way
and expressed this opinion to her dean and others at several
department meetings.
2 Shortly thereafter, Brown became active in the Texas Faculty
Association (TFA), a professional organization established for the
advancement of faculty concerns and issues. Among other things,
TFA lobbies on behalf of its members before the Texas legislature.
According to Brown, shortly after joining TFA, she and other
members were informed on a regular basis by unspecified individuals
that they “were on a hit list”; but, she concedes she never heard
this from either Holda or Stanglin. (In fact, Stanglin was not even
employed by Kilgore during this time period.)
Brown states that, as members of TFA, she and others attended
several meetings of the Kilgore College Board of Trustees (some
time between 1990 and early 1993) to voice concerns over the size
of English classes and “some money that was to be part of our
salary”. Brown admits she did not verbalize these concerns;
instead, Fran Rathburn and Hugh Wink spoke for the group.
According to Brown, the meetings were not “audience friendly” and
were “not really open”.
A 1990 reorganization of Kilgore resulted in a change in job
titles and job responsibilities for Brown and others. At that
time, Brown was a Director of the Communications Division. Kilgore
eliminated all five Division Director positions and replaced them
with Department Chairs. All the Division Directors, including
Brown, were retained as Department Chairs. Job responsibilities
also changed: employment contracts were shortened; Department
Chair stipends were increased; and class loads were increased.
3 Because of these changes, Brown requested her department be
split, so that she became responsible only for English and Reading
classes. And, she maintains she faced retaliation because of her
attempts to conduct a salary study following the 1990
reorganization. It took six requests by Brown and two letters from
the TFA attorney to receive requested Board minutes, and
intervention by others to receive salary information on certain
teachers. Brown is unsure, however, whether anyone other than TFA
members had difficulty receiving requested records during that time
frame.
Brown also believes she suffered retaliation by then President
Woodruff (again, he left in 1993) because she, another faculty
member, and several computer science professors edited a TFA
newsletter. During the early 1990s, when they were attempting a
budget study and “running up against a brick wall” in their
requests for records, board member Mata told Brown that President
Woodruff stated, after he read the newsletter: “Bennie Brown would
have hell to pay”.
As of February 2000 (this action was filed in 1999), Brown was
not actively involved in the TFA, and there has been no substantial
TFA activity at Kilgore since January 1997. While Brown was
elected president the last time elections were held, the
organization met two or three times between 1997 and 2000.
With respect to her right to assemble, Brown testified her
only recollection of problems occurred “in the early time”, from
1990 through 1993, and involved her “hearing that ... a college
4 official had sent someone to spy on us[;] that another college
official referred to us as a union, and you better watch those
troublemakers and union rights people”.
Brown did not know, however, if she ever heard Holda’s name
connected with any of the stories she heard regarding the TFA.
Brown also acknowledges: Stanglin has never criticized her for
speaking at college events on behalf of the TFA; and Kilgore
provided her with the opportunity to speak on behalf of the TFA
when the 1997 fall term began. While Brown does not recall if she
actually spoke then, if she did, Holda did not criticize her for
it; and Brown does not recall Holda ever criticizing her for
speaking on behalf of the TFA at Kilgore.
Dr. Thornton, who preceded Holda as President of Kilgore,
stated: during his tenure, board chairman Johnston directed that
Brown not be recommended for any promotion and stated that “Brown
was not going to be promoted to anything”. Dr. Thornton believed
Brown to be the best qualified candidate for both the Dean of
Academic Instruction position and director of the Workforce
Education Department. Brown applied, and was rejected, for the
Dean position. The Workforce position was filled without Brown’s
having an opportunity to apply for it.
Elwyn J. Bone, who became interim Dean of Academic
Instruction, following Brown’s application in 1993 for that
position, stated: she (Bone) retired in 1989, but returned to teach
at Kilgore’s request in 1993; when Brown applied for the Dean of
Academic Instruction position months prior to Bone’s returning to
5 Kilgore, Bone recommended Brown for the position; the selection
process for the position “was tainted because of improper questions
asked of Ms. Brown and other applicants regarding their membership
with the [TFA]”, which required that the entire process be
repeated; and Bone was asked to fill the Dean position on an
interim basis, applied for the position, and was given the job over
one other applicant (Brown did not reapply).
In 1993 or 1994, Bone recommended Brown for the position of
director of the Workforce Education Department. Dr. Thorton
(again, Kilgore President before Holda) told Bone the Board “said
never to bring up Ms. Brown’s name in conjunction with a job
promotion”.
In the Spring of 1997, Brown was a Department Chair at
Kilgore. At that time, Kilgore instituted another internal
reorganization; all Department Chair positions were abolished and
replaced with Department Coordinator positions. Brown did not
apply for a Department Coordinator position, choosing instead to
apply for Dean of Business, Language Development and Technology
(BLDT Dean), a newly-created position supervising the division
created when the English and Reading department merged into a
primarily technical/vocational division.
Stanglin, who had joined Kilgore shortly before, appointed a
selection committee. According to Stanglin, the selection
committee for the BLDT Dean acted contrary to his instructions and
prepared a written recommendation with a rank order of the
individuals interviewed. (Earlier published written procedures,
6 however, approved by Holda, provided that the selection committee
would rank candidates in order of preference and make a
recommendation.) Brown was ranked third. Linda Jarvis, selection
committee chair, stated the committee did not consider Brown’s sex,
age, or TFA activity.
After discovering the top-ranked candidate was not qualified
for the position, Stanglin determined, based on conversations with
selection committee members, that the committee did not have the
same level of enthusiasm for the remaining candidates. Therefore,
Stanglin decided to appoint a second selection committee and
reported this in a memorandum to the Kilgore faculty and staff.
Following the disqualification of the top choice for BLDT
Dean, Jarvis voiced her personal recommendation of Brown in a
memorandum to Stanglin. Jarvis stated: “It is my opinion, as
chairperson of the committee ..., that the committee believes that
Mrs. Brown is the best, most qualified person for the position of
dean, but they are afraid of what they do not know”.
In support of Individual Defendants’ summary judgment motion,
Jarvis reiterated that the memorandum reflected her “personal
observations and opinions only. It does not reflect, and was not
intended to reflect, the opinion, recommendation or conclusions of
the search committee”. And, Jarvis stated that, contrary to the
allegations in Brown’s complaint, the first selection “committee
never prepared a report recommending that Ms. Brown receive the
appointment as [BLDT] Dean”.
7 For the second selection committee, Brown, Randy Lewellen
(ranked second, above Brown, by the first committee), and another
candidate were selected for interviews. Hugh Wink, committee chair
(identified supra as a TFA spokesperson to the Board at a meeting
in the early 1990s), stated the committee did not consider age,
sex, or Brown’s activity in the TFA, and did not question Brown
about any TFA involvement.
Stanglin attended the meeting where the second committee
discussed each candidate’s strengths and weaknesses. Stanglin and
Holda then met with all three candidates. Stanglin selected
Lewellen as the new BLDT Dean. (Lewellen is both younger than
Brown and male.)
In support of Brown, another committee member, Jeannie Dykes,
stated: Stanglin directed the committee to place nothing in
writing; two committee members not listed by Brown as references
provided “scathingly negative input” about Brown; Dykes believed
the appointment of those two members had been previously objected
to by Brown; the committee failed to follow published hiring
procedures; the committee received a questionnaire from Kilgore
concerning Brown’s age, sex, and TFA affiliation; a memorandum from
Dykes (which is not a part of the record), detailing her concerns
with the second committee, went unanswered; and “Brown clearly was
the most qualified person for the job”.
Based primarily upon not being selected in 1997 as BLDT Dean,
Brown filed this action in 1999 against Kilgore, Holda, and
Stanglin, with federal law claims for gender (Title VII) and age
8 (ADEA) discrimination, equal protection violations (pursuant to 42
U.S.C. § 1983), and First Amendment (speech and assembly)
retaliation (pursuant to § 1983). In their individual capacities,
Holda and Stanglin were subject only to the § 1983 equal protection
and First Amendment claims.
Kilgore, Holda, and Stanglin moved for summary judgment,
including, inter alia, Holda and Stanglin’s asserting qualified
immunity from the retaliation claims at issue on this appeal. The
magistrate judge’s report and recommendation that the motion be
denied was adopted by the district court. On motion for
reconsideration, the district court dismissed the equal protection
claim because Brown conceded it was duplicative of her Title VII
and ADEA claims.
II.
This interlocutory appeal by Holda and Stanglin concerns
qualified immunity, in their individual capacities, from the First
Amendment retaliation claims. In disputing Holda and Stanglin’s
being entitled to such immunity, Brown contends: (1) we lack
jurisdiction because Appellants are challenging the sufficiency of
the evidence; and (2) in the alternative, such immunity was
properly denied because she asserted a clearly established
constitutional violation.
A.
Jurisdiction over an interlocutory appeal from the denial of
summary judgment seeking qualified immunity is limited to “issues
of law and ‘concern[s] only [the] application of established legal
9 principles’”. Turner v. Houma Mun. Fire & Police Civ. Serv. Bd.,
229 F.3d 478, 482 (5th Cir. 2000) (alteration in original; quoting
Jones v. Collins, 132 F.3d 1048, 1051 (5th Cir. 1998)). For a
denial based on material fact issues, we may not “review the ...
finding that particular factual issues are ‘genuine’[, but we do]
have jurisdiction to review the ... determination that certain
facts (or factual disputes) are ‘material’ to the issue of
qualified immunity”. Thompson v. Upshur County, Tex., 245 F.3d
447, 455-56 (5th Cir. 2001); see also Gerhart v. Hayes, 201 F.3d
646, 648 n.2, rev’d in part on reh’g, 217 F.3d 320 (5th Cir.)
(deleting and substituting Part IV concerning whether speech was a
matter of public concern), cert. denied, 121 S. Ct. 573 (2000);
Colston v. Barnhart, 146 F.3d 282, 284-85 (5th Cir.) (en banc),
cert. denied, 525 U.S. 1054 (1998). We must also consider “whether
the district court applied the correct legal standard on summary
judgment”. Gerhart, 201 F.3d at 648-49.
Brown contends we lack jurisdiction, based on her assertion
that Holda and Stanglin sought summary judgment premised on the
insufficiency of Brown’s evidence. “[W]e possess no jurisdiction
over a claim that a plaintiff has not presented enough evidence to
prove that the plaintiff’s version of events actually occurred”.
Burge v. Parish of St. Tammany, 187 F.3d 452, 479 (5th Cir. 1999).
Holda and Stanglin respond that, instead, they present an issue of
law: “Brown has failed to establish that any conduct of Holda or
Stanglin violated a clearly established constitutional right”.
10 We have jurisdiction to review the issues of law presented by
this appeal: whether the district court applied the correct legal
standard; and whether Holda or Stanglin violated a clearly
established right, including, by necessity, whether Brown’s speech
constituted a matter of public concern.
B.
We review de novo the denial of summary judgment seeking
qualified immunity, viewing the evidence in the light most
favorable to the nonmovant (Brown). See, e.g., Lukan v. N. Forest
Indep. Sch. Dist., 183 F.3d 342, 345 (5th Cir. 1999), cert. denied,
529 U.S. 1019 (2000); Hale v. Townley, 45 F.3d 914, 917 (5th Cir.
1995).
To determine whether a government official is entitled to
qualified immunity, we apply the well-established, two-step
analysis: whether the official violated a clearly established
constitutional right; and, even if he did, whether his conduct was
objectively reasonable. See, e.g., Lukan, 183 F.3d at 345-46.
Accordingly, prerequisite to such analysis on summary judgment is
that Brown must show the violation of a clearly established right:
she must allege, and show facts to support, every element of her
First Amendment retaliation claims.
Such a claim requires showing each of the following elements:
the employee suffered an adverse employment action; her speech
involved a matter of public concern; her interest in commenting on
such matters outweighs the defendant’s interest in promoting
efficiency; and the speech motivated the adverse employment action.
11 Id. at 346. If plaintiff makes this showing, the defendant must
show that, regardless of the protected conduct, it would have taken
the same action against plaintiff. Id.
Holda and Stanglin contend: whatever speech Brown made, it
was not on a matter of public concern; and neither Holda nor
Stanglin participated in conduct which violated Brown’s
constitutional rights. Brown maintains: it is sufficient that she
simply pleaded a constitutional violation; and her evidence
established that “the unlawful motivation originating with [the
Board] was implemented” by Holda and Stanglin.
The parties do not dispute that Brown suffered an adverse
employment action. And, Individual Defendants do not contest that,
if Brown spoke on a matter of public concern, her speech concerns
outweigh Kilgore’s efficiency concerns. Accordingly, we first
examine whether Brown’s speech was on a matter of public concern;
if it was, we determine whether either Holda or Stanglin violated
her constitutional (First Amendment) rights. Finally, in the
alternative, we will determine whether Holda’s and Stanglin’s
conduct was objectively reasonable.
1.
“Whether the speech at issue relates to a matter of public
concern is a question of law to be resolved by the court.”
Tompkins v. Vickers, 26 F.3d 603, 606 (5th Cir. 1994) (citing
Rankin v. McPherson, 483 U.S. 378, 386 n. 9 (1987)). “[T]he mere
fact that the topic of the employee’s speech was one in which the
public might or would have had a great interest is of little
12 moment”. Terrell v. Univ. of Tex. Sys. Police, 792 F.2d 1360, 1362
(5th Cir. 1986), cert. denied, 479 U.S. 1064 (1987). “Speech rises
to the level of public concern when an individual speaks primarily
as a citizen rather than as an employee.” Bradshaw v. Pittsburg
Indep. Sch. Dist., 207 F.3d 814, 816 (5th Cir. 2000) (citing
Thompson v. City of Starkville, 901 F.2d 456, 461 (5th Cir. 1990)).
“[T]he content, form and context of a given statement, as revealed
by the entire record” must be evaluated. Id. at 817 (quoting
Denton v. Morgan, 136 F.3d 1038, 1043 (5th Cir. 1998)).
Holda and Stanglin contend Brown’s “speech” was neither by
her nor on matters of public concern. The only speech Brown can
specifically point to occurred in 1990, involving the reinstatement
of students following an exam, when Holda was not in a decision-
making position and Stanglin was not even employed by Kilgore.
With respect to speech involving the TFA, although Brown attended
Board meetings at which TFA members spoke, Brown did not speak.
Her other alleged First Amendment activities involved (1)
difficulty getting Board minutes for the salary study in 1990 (when
neither Holda nor Stanglin were in decision-making positions) and
(2) speaking in favor of TFA membership during the opening session
at the start of a school year (although she can not remember
exactly when this occurred).
Brown contends, however, that organizing, and activity in,
faculty organizations, including requests for salary information
and questioning salary practices, are clearly established
constitutional rights. See Allaire v. Rogers, 658 F.2d 1055, 1059
13 (5th Cir. Unit A Oct. 1981), cert. denied, 456 U.S. 928 (1982)
(members of college faculty organizations requesting salary
information); Goss v. San Jacinto Jr. Coll., 588 F.2d 96, 99 (5th
Cir. 1979) (efforts to organize local chapter of National Faculty
Association); Lewis v. Spencer, 468 F.2d 553, 557 (5th Cir. 1972)
(tenure advocacy and attempts to organize chapter of National
Faculty Association). In addition, Brown contends other courts
have found faculty member expression on student grading issues
protected by the First Amendment. See, e.g., Parate v. Isibor, 868
F.2d 821, 828 (6th Cir. 1989); Hesse v. Bd. of Educ. of Township
High Sch. Dist. No. 211, Cook County, Ill., 848 F.2d 748, 751 (7th
Cir. 1988), cert. denied, 489 U.S. 1015 (1989).
Brown is incorrect that simply pleading a constitutional
violation is sufficient to defeat a qualified immunity summary
judgment. She must also produce affirmative evidence of specific
facts to support each element of her First Amendment retaliation
claims. See Schaefer v. Gulf Coast Reg’l Blood Ctr., 10 F.3d 327,
330 (5th Cir. 1994) (citing Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 256-57 (1986)); FED. R. CIV. P. 56(c).
While we doubt Brown’s vague references to “speech” are
sufficient to defeat summary judgment, we will assume (as
Individual Defendants seem to concede in their reply brief) that
her comments regarding grading policies and her advocacy in TFA
during the early 1990s amount to speech on a matter of public
concern. She has, however, failed to identify any such speech that
14 occurred after Holda and Stanglin were placed in decision-making
positions.
2.
The fourth element of a First Amendment retaliation claim
requires showing plaintiff’s speech motivated the adverse
employment action. See Lukan, 183 F.3d at 346. Brown must show
her speech in the early 1990s was a “substantial or motivating
factor in the” decision, years later (1997), by Holda and Stanglin
to make Lewellen BLDT Dean, instead of her. Gerhart, 217 F.3d at
321. Further, to be liable under § 1983, an individual defendant
must have personally participated in the constitutional
deprivation. Baskin v. Parker, 602 F.2d 1205, 1208 (5th Cir.
1979).
Concerning the violation of a clearly established right, the
magistrate judge identified Brown’s association with TFA and
improper questioning that occurred during her 1993 application for
Academic Dean. These events occurred when Stanglin was not even
employed by Kilgore and when Holda was not in a decision-making
role for the Dean position and are irrelevant to their individual
liability without some proof that Holda and/or Stanglin were
influenced by that conduct and, as a result, in 1997 made the
decision adverse to Brown.
Brown further contends: in 1997, Stanglin changed the rules
with regard to BLDT Dean selection procedures by dismissing the
first selection committee for submitting written recommendations
(this is discussed infra); and Holda and Stanglin are responsible
15 for the second committee’s choosing Lewellen over her. This is not
reflected in the summary judgment record.
Instead, the only evidence in the record is: Brown’s speech
was not considered in the 1997 decision to make Lewellen BLDT Dean,
instead of her; Brown was ranked third (behind Lewellen) by the
first selection committee; and Brown admits neither Holda nor
Stanlgin has ever criticized her for any First Amendment
activities. And, Brown concedes the TFA at Kilgore has, for all
practical purposes, been inactive since Holda became President and
Stanglin joined Kilgore.
Accordingly, Brown has produced no evidence that her speech
motivated the conduct of Holda and Stanglin. Restated, each is
entitled to qualified immunity, in their individual capacities.
3.
In the alternative, even if we were to find the decision to
select Lewellen, instead of Brown, violated a clearly established
right, there is sufficient evidence to show Holda and Stanglin
acted in an objectively reasonable manner. See Lukan, 183 F.3d at
346. Along this line, there are no genuine issues of material fact
precluding our review of this subpart for qualified immunity
analysis.
In seeking to show Holda and Stanglin’s actions were
unreasonable, Brown: wrongly asserts the first BLDT Dean search
committee recommended Brown (again, she was third); attempts to
impute actions by individual members of the second search committee
to Holda and Stanglin; and discusses events that preceded Holda’s
16 tenure as President, as if they occurred during this opportunity
for promotion. We are required to determine objective
reasonableness based upon a version of the facts most favorable to
the plaintiff, see Lampkin v. City of Nacogdoches, 7 F.3d 430, 435
(5th Cir. 1993), cert. denied, 511 U.S. 1019 (1994); we do so,
nevertheless, based on the evidence in the summary judgment record.
As with our earlier determination regarding Individual
Defendants’ conduct, Brown has failed to show Holda and Stanglin
took any action that was objectively unreasonable with respect to
their decision to select Lewellen over Brown. While it is unclear
why Stanglin instructed the first selection committee contrary to
the published procedures, this issue, even if Brown could show the
conduct was objectively unreasonable, is not material to Individual
Defendants’ entitlement to qualified immunity. In other words, it
had nothing to do either with the selection by the first committee
or with it being necessary to have a second committee because the
first person selected was found not qualified.
Brown was considered by both committees and was even ranked
below Lewellen by the first committee (the one Stanglin dismissed);
Stanglin attended a meeting of the second selection committee to
hear the strengths and weaknesses of each candidate; and Holda and
Stanglin interviewed the candidates who were recommended by the
committee, including Brown. Stanglin recommended Lewellen because,
inter alia: his experience in workforce development, technical
education, and contract training was superior to Brown; and
Lewellen had strong communication, leadership, and team building
17 skills. There is no action that either Holda or Stanglin took that
was objectively unreasonable in their decision to select Lewellen
rather than Brown.
III.
For the foregoing reasons, we REVERSE the denial of qualified
immunity for Holda and Stanglin, in their individual capacities,
from the First Amendment retaliation claims and REMAND for further
proceedings consistent with this opinion.
REVERSED and REMANDED