IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
____________________
No. 99-20111 Summary Calendar ____________________
B DELL FELDER, PhD,
Plaintiff-Appellant,
v.
WILLIAM P HOBBY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the Southern District of Texas (H-98-CV-17) _________________________________________________________________
October 20, 1999
Before KING, Chief Judge, and POLITZ and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant B. Dell Felder appeals the district
court’s award of summary judgment based on qualified immunity to
defendant-appellee William P. Hobby in this suit alleging civil
rights violations under § 1983. We affirm.
I.
* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
1 Plaintiff-appellant B. Dell Felder (“Felder”), a tenured faculty
member of the University of Houston, served as Vice-Chancellor
for the University of Houston System (the “System”) from 1990
until January 1996. As Vice-Chancellor, Felder oversaw the
System’s public television station. She was a strong advocate
for a multi-million dollar expansion of the station’s facilities
to be used for distance learning, a program that the majority of
the University of Houston faculty members vehemently opposed.
Defendant-appellee William P. Hobby (“Hobby”) became the System’s
Chancellor on September 1, 1995. On January 5, 1996, Hobby
removed Felder from the Vice-Chancellor position. Felder alleges
that Hobby, responding to pressure from the faculty, justified
her discharge by falsely accusing her of withholding information
from him regarding a 1991 Attorney General Opinion. That opinion
held that state funds could not be used for the proposed
expansion of the television facilities. Felder alleges further
that Hobby relayed this accusation to members of the System’s
Board of Regents, the University community, and the media. An
article appearing in the Houston Press stated, “Felder had not
made the regents aware of [the Attorney General’s] opinion or the
fact that UH campus presidents had been pressured by Felder into
supporting the allocation.”
Felder submitted her letter of resignation, effective January 31,
1997, from the University of Houston faculty.
Felder filed this § 1983 action alleging that Hobby had removed her
from the vice-chancellor position in retaliation for her exercise
2 of First Amendment rights, in deprivation of her “liberty
interest” in her reputation without due process and in
deprivation of her property interests in both her administrative
and faculty positions without due process. Hobby filed motions
for a Rule 7 Reply (“Reply”) to his affirmative defense of
qualified immunity and for a stay of discovery pending a decision
on that defense. Both were granted. After receiving Felder’s
Reply, Hobby filed a motion for summary judgment on the basis of
qualified immunity. The district court granted the motion,
concluding that Hobby had not violated clearly established
constitutional rights when he removed Felder and that his conduct
was not objectively unreasonable. Felder’s motion for
reconsideration was denied, and she timely filed this appeal.
II.
We review a district court’s grant of a motion for summary
judgment de novo, applying the same standards as the district
court. See Ellison v. Connor, 153 F.3d 247, 251 (5th Cir. 1998);
Norman v. Apache Corp., 19 F.3d 1017, 1021 (5th Cir. 1994).
After consulting applicable law to ascertain the material factual
issues, we consider evidence bearing on those issues, viewing the
facts and inferences therefrom in the light most favorable to the
nonmovant. See King v. Chide, 974 F.2d 653, 656 (5th Cir. 1992).
We resolve factual controversies in favor of the nonmoving party,
but only when an actual controversy exists, that is, when both
parties have submitted evidence of contrary facts. See McCallum
Highlands, Ltd. v. Washington Capital Dus, Inc., 66 F.3d 89, 92
3 (5th Cir. 1995). Conclusory allegations, speculation, and
unsubstantiated assertions are not evidence. See Douglass v.
United States Auto. Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996).
Summary judgment is properly granted if “the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” FED. R. CIV. P.
56(c).
We review a district court’s ruling on a Rule 59 or Rule 60
motion for reconsideration for abuse of discretion. See Jones v.
Central Bank, 161 F.3d 311, 312 (5th Cir. 1998); Samaras v.
America’s Favorite Chicken Co., (In re Al Copeland Enters.,
Inc.), 153 F.3d 268, 271 (5th Cir. 1998), cert. denied, 119 S.
Ct. 1251 (1999).
III.
An official is entitled to qualified immunity “‘unless it is shown that,
at the time of the incident, he violated a clearly established
constitutional right.’” Mangieri v. Clifton, 29 F.3d 1012, 1015
(5th Cir. 1994) (quoting Spann v. Rainey, 987 F.2d 1110, 1114 (5th
Cir. 1993)); see Siegert v. Gilley, 500 U.S. 226, 231 (1991).
The plaintiff bears the burden of negating the defendant’s claim
of qualified immunity. See Foster v. City of Lake Jackson, 28
F.3d 415, 428 (5th Cir. 1994).
Determining entitlement to qualified immunity is a two-part inquiry.
First, we must assess whether the plaintiff has alleged a
4 violation of a “clearly established constitutional right.”
Siegert, 500 U.S. at 231; see Fontenot v. Cormier, 56 F.3d 669,
673 (5th Cir. 1995). The contours of the right allegedly
violated “must be sufficiently clear that a reasonable official
would understand that what he is doing violates the right.”
Meadowbriar Home for Children, Inc. v. Gunn, 81 F.3d 521, 530
(5th Cir. 1996).
If the plaintiff has alleged a violation of a clearly established
constitutional right, we then consider whether the official’s
actions were objectively reasonable. See Mangieri, 29 F.3d at
1016; Spann, 987 F.2d at 1114. “Objective reasonableness is
assessed in light of legal rules clearly established at the time
of the incident.” Mangieri, 29 F.3d at 1016; see Spann, 987 F.2d
at 1114. The individual defendant is entitled to qualified
immunity if reasonable public officials could differ on the
lawfulness of his actions. See Malley v. Briggs, 475 U.S. 335,
340 (1986). The subjective belief of the plaintiff as to the
reasonableness of the defendant’s actions is irrelevant to the
qualified immunity issue. See Pfannstiel v. City of Marion, 918
F.2d 1178, 1184 (5th Cir. 1990). Similarly, “even an officer who
subjectively intends to act unreasonably is entitled to immunity
if his actions are objectively reasonable.” Id. at 1187.
A. First Amendment Claim
Felder alleged that she was terminated from her
administrative position in retaliation for her controversial
advocacy of distance learning. As a public employee, Felder must
5 establish a claim of retaliation for the exercise of First
Amendment rights by alleging facts that meet a three-part test:
(1) her speech involved a matter of public concern, (2) her
interest in commenting on matters of public concern outweighed
Hobby’s interest in promoting efficiency, and (3) her speech
motivated the decision to terminate her. See Wallace v. Texas
Tech Univ., 80 F.3d 1042, 1050 (5th Cir. 1996); Coughlin v. Lee,
946 F.2d 1152, 1156-57 (5th Cir. 1991).
A court determines whether a public employee’s speech
addresses a matter of public concern by examining the content,
form, and context of a given statement, as revealed by the whole
record. See Connick v. Myers, 461 U.S. 138, 147-48 (1983);
Wallace, 80 F.3d at 1050. “Because almost anything that occurs
within a public agency could be of concern to the public, we do
not focus on the inherent interest or importance of” the
employee’s speech. Terrell v. University of Texas Sys. Police,
792 F.2d 1360, 1362 (1986), cert. denied, 479 U.S. 1064 (1987).
Rather, the speech at issue is protected as a matter of public
concern if the employee is speaking primarily in her role as
citizen rather than in her role as employee. See Connick, 461
U.S. at 147; Wallace, 80 F.3d at 1050. We have said that a
public employee’s speech “made in the role as employee is of
public concern only in limited cases: those involving the report
of corruption or wrongdoing to higher authorities.” Wallace, 80
F.3d at 1051.
6 Felder’s advocacy of the distance learning program was made
in her role as Vice-Chancellor rather than as a private citizen.
Indeed, her complaint acknowledges that she, “in the proper
discharge of her duties, was a strong advocate” of the program.
According to Wallace, though, this speech does not constitute a
matter of public concern because Felder did not allege that her
statements involved “the report of corruption or wrongdoing.”
Id.; see also Warnock v. Pecos County, 116 F.3d 776, 780
(1997)(citing Wallace for proposition that plaintiff’s speech as
employee was matter of public concern because she was reporting
wrongdoing). When an employee’s speech does not address a matter
of public concern, our inquiry ends. See Connick, 461 U.S. at
146 (establishing that if public employee’s speech does not touch
upon matter of public concern, the First Amendment does not
prevent termination); Wallace, 80 F.3d at 1051; Coughlin v. Lee,
On appeal, Felder contends that Wallace does not define
every circumstance in which statements made in the role of
employee are protected by the First Amendment as a matter of
public concern. Even if Felder is correct (and she may well be
correct) and we conclude that the facts she alleged arguably
satisfied the first prong of our inquiry, the evidence she
produced would nevertheless be subjected to the second prong’s
balancing test.
7 The second prong requires a balancing of Felder’s interest
in advocating the distance learning program against Hobby’s
interest in maintaining harmony and efficiency at the University
of Houston. See Connick, 461 U.S. at 142; Warnock, 116 F.3d at
780. The district court correctly noted that an employer has
greater discretion to penalize an employee for her official
speech when the employee holds a high-level policy-making
position. See Rash-Aldridge v. Ramirez, 96 F.3d 117, 120 (5th
Cir. 1996); Kinsey v. Salado Indep. School Dist., 950 F.2d 988,
992-96 (5th Cir. 1992)(en banc), cert. denied, 504 U.S. 941, 112
S.Ct. 2275 (1992); Gonzalez v. Benavides, 712 F.2d 142, 148 (5th
Cir. 1983). Felder was a high-level policy-maker who, by her own
admission, was advocating an “almost unanimous[ly]” opposed
policy. Hobby was her employer with an “interest in having the
employee contribute to the smooth operation of the workplace.”
Warnock, 116 F.3d at 780.
On appeal, Felder contends that the district court erred by
going beyond the qualified immunity inquiry and deciding the
balancing test on the merits. Whatever the result of that
balance, however, the district court properly noted that the
results of individual balancing tests can rarely define a
“clearly established” constitutional right for qualified immunity
purposes. See Pierce v. Smith, 117 F.3d 866, 883 n.21 (5th Cir.
1997) (citations omitted). As such, the district court properly
8 found that Hobby’s decision to remove Felder from the Vice-
Chancellor position was objectively reasonable in light of
clearly established First Amendment law. We agree that Hobby is
entitled to qualified immunity on this claim.
B. “Liberty interest” claim
To establish a deprivation of her liberty interest in her
reputation without due process of law, Felder must first allege
facts establishing that her liberty interest was
implicated—namely, that she was terminated based on charges that
were (1) false, (2) publicized, and (3) stigmatizing to either
her standing or reputation in her professional community or her
ability to find other employment. See Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 573 (1972); Cabrol v. Town of
Youngsville, 106 F.3d 101, 107 (5th Cir. 1997); Moore v.
Mississippi Valley State Univ., 871 F.2d 545, 549 (5th Cir.
1989).
According to Felder’s Reply, Hobby stated in a conversation
with Felder that “he would take the position that plaintiff had
not informed Defendant Hobby” of the Attorney General’s opinion.
Felder alleged that Hobby communicated this false assertion “to
members of the Board of Regents, to individuals within the
University community, and to media representatives.” To support
this claim, she quoted an article in the Houston Press written
one month after her removal. In it, the reporter discussed the
potential for allocation of state funds for the station and
9 stated that “the official in charge of the effort, senior vice
chancellor Dell Felder, had not made the regents aware of [the
Attorney General’s] opinion.”
The district court concluded that the statement was
insufficiently stigmatizing to implicate a protected liberty
interest. “A moral stigma such as immorality or dishonesty is
required to show a deprivation of liberty.” Ludwig v. Board of
Trustees of Ferris State Univ., 123 F.3d 404, 410 (6th Cir.
1997)(citing Roth, 408 U.S. at 573). In contrast, charges of
inadequacy, inefficiency, or incompetence do not carry with them
the sort of opprobrium necessary to constitute a deprivation of
liberty. See id.; Cabrol, 106 F.3d at 108. The district court
found that Hobby’s statement was an accusation of Felder’s
neglect of her duties, rather than one of her dishonesty, and
thus Felder had failed to allege facts establishing a deprivation
of her liberty interest.
On appeal, Felder contends that the district court
misunderstood its duty at summary judgment and failed to construe
the facts in her favor. She claims that Hobby’s statement was an
actionable accusation of her dishonesty, rather than an
insufficient implication of neglect, and the district court erred
in finding otherwise. We disagree.
First, whether or not a fact (here, Hobby’s statement)
satisfies an element of a claim is a question of law. The
district court was not bound by the conclusions of Felder or her
counsel.
10 Second, Hobby’s statement did not rise to the level of an
actionable imposition of “moral stigma.” Such stigma usually
derives from serious, specific charges and implies an inherent,
or at least persistent, personal condition which both potential
employers and one’s peers would want to avoid. For example,
dismissals for dishonesty, see White v. Thomas, 660 F.2d 680,
684-85 (5th Cir. 1981), cert. denied, 455 U.S. 1027 (1982)(lying
on job application); Robinson v. Wichita Falls & North Texas
Community Action Corp., 507 F.2d 245 (5th Cir. 1975)(falsifying
travel vouchers), for having committed a serious felony, see
United States v. Briggs, 514 F.2d 794, 798 (5th Cir. 1975), for
manifest racism, see Wellner v. Minnesota State Junior College,
487 F.2d 153 (8th Cir. 1973), for serious mental illness, see
Lombard v. Board of Education, 502 F.2d 631 (2d Cir. 1974) cert.
denied, 420 U.S. 976 (1975), and for lack of “intellectual
ability, as distinguished from his performance...,” see Greenhill
v. Bailey, 519 F.2d 5 (8th Cir. 1975), have been held to
implicate a protected liberty interest.
The statement that Felder “had not informed” or “had not
made the regents aware” merely suggests inadequate job
performance, a situational difficulty rather a “‘badge of
infamy,’ public scorn, or the like.” Ball v. Board of Trustees
of Kerrville Indep. Sch. Dist., 584 F.2d 684, 685 (5th Cir.
1978), cert. denied, 440 U.S. 972 (1979); see also Wells v. Hico
Indep. Sch. Dist., 736 F.2d 243, 256 & n.16 (5th Cir.
1984)(noting that “for a charge to be stigmatizing, it must be
11 worse than merely adverse”). As such, its publication did not
deprive Felder of her liberty interest in her reputation. See,
e.g., Vander Zee v. Reno, 73 F.3d 1365, 1369 (5th Cir.
1996)(accusation of exercising “poor judgment” not sufficiently
stigmatizing to implicate liberty interest); Blackburn v. City of
Marshall, 42 F.3d 925, 936 (5th Cir. 1995)(newspaper article
containing adverse comments on plaintiff’s qualifications and
attitude insufficient); O’Neill v. City of Auburn, 23 F.3d 685,
691 (2nd Cir. 1995)(charge of “incompetence” and sloppy work
insufficient); Connolly v. Comptroller of the Currency, 876 F.2d
1209, 1215 (5th Cir. 1989)(public statement that plaintiff lacked
qualifications insufficient); Huffstutler v. Bergland, 607 F.2d
1090, 1092 (5th Cir. 1979)(rating of honesty as "unsatisfactory"
insufficient); Stretten v. Wadsworth Veterans Hospital, 537 F.2d
361 (9th Cir. 1976)(incompetence, inability and unwillingness to
deal with co-workers in a professional manner insufficient).
C. Due Process Claim—Administrative Position
Procedural due process requires notice and an opportunity to
be heard before one can be deprived of a protected property
interest. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S.
532, 545 (1985). Felder alleged that a “consistent policy of not
summarily dismissing senior administrators, but of providing
transitional periods of compensated leave, return to tenured
positions and other benefits” gave her a clearly established
property interest in her Vice-Chancellor position. Therefore,
she was entitled to due process before being removed. The
12 district court found that the “consistent policy” did not create
a property interest under Texas law. We agree.
To create a property interest in employment, an employee
must have a legitimate claim of entitlement created and defined
“by existing rules or understandings that stem from an
independent source such as state law....” Roth, 408 U.S. at 577.
Under Texas law, employment is at-will unless the employer
“unequivocally indicate[s] a definite intent to be bound not to
terminate the employee except under clearly specified
circumstances.” Montgomery County Hospital Dist. v. Brown, 965
S.W.2d 501, 502 (Tex. 1998).
We agree with the district court that, absent an express
agreement, the System’s “consistent policy” with respect to
senior administrators does not create a property interest in
Felder’s administrative employment under Texas law. Felder
insists, however, that the district court erred because the
reasoning in Perry v. Sindermann, 408 U.S. 593 (1972), gives her
a property interest in her administrative position based on this
“consistent policy.” In Perry, an untenured instructor whose
contract was not renewed relied on de facto tenure provisions in
an official Faculty Guide to raise a genuine issue as to his
property interest in employment. The provisions in Perry related
directly to expectations in continued employment. Here, Felder
relies on a policy that indicates how administrators are usually
13 terminated. It is well-settled that the existence of termination
procedures does not create a property interest in one’s
employment. See Loudermill, 470 U.S. at 541; Evans v. City of
Dallas, 861 F.2d 846, 850 (5th Cir. 1988); Cote v. Rivera, 894
S.W.2d 536, 541 (Tex. 1995). The district court, therefore,
properly granted summary judgment on this issue.
D. Due Process Claim—Tenured Position
As a tenured professor, Felder had a constitutionally
protected property interest in her faculty position. See Roth,
408 U.S. at 576. She alleged she was deprived of this interest
without due process because “[i]n order to protect her interests,
[she] was required to submit her letter of resignation from her
tenured faculty position....” The district court found that
Felder voluntarily resigned her position, she was not removed;
even if she had believed her “required” resignation improper, she
failed to invoke her procedural protections by requesting a
hearing; and Hobby’s failure to provide a hearing that was not
requested was not objectively unreasonable.
Felder argues on appeal that the district court erred in
denying her motion for reconsideration with respect to this
claim. In her motion, she requested the opportunity to replead
and conduct limited discovery because she had new information,
“of which she was previously not aware because of the stay of
discovery, which would establish a fraudulent scheme to deprive
Felder of her faculty tenure rights.” She claimed that, as part
14 of this scheme, Hobby had made “specific promises” in order to
induce her to forego her rights to a hearing, and she had relied
on these promises “until so much time had passed that further
delay was intolerable and [she] was constructively
discharged....”
The defense of qualified immunity protects officials from
not only the costs of trial but also the burdens of discovery.
See Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982); Jacquez v.
Procunier, 801 F.2d 789, 791 (5th Cir. 1986). Before the
question of immunity is resolved, a plaintiff is entitled to
discovery only if she has supported a claim with sufficient
specificity to raise a factual issue as to the legality of
defendant’s conduct. See Schultea v. Wood, 47 F.3d 1427, 1434
(5th Cir. 1995); Lion Boulos, 834 F.2d 504, 507-08 (5th Cir.
1987). The district court did not abuse its discretion in
concluding that Felder failed to meet this standard.
Although Felder based her request for discovery on “new”
information, the information involved allegations identical to
those already asserted in her Reply–Hobby’s broken promises and
undue delays, intimations of fraud, and involuntary resignation.1
Her motion for reconsideration differed from her Reply only in
1 Specifically, she alleged in her Reply that Hobby “suggest[ed] that plaintiff accept certain benefits in exchange for the voluntary waiver of tenure,” (¶4.5) and “investigat[ed] other means of depriving plaintiff of her tenure” (¶4.6); that Hobby “indicated at various times a willingness to provide the required corrective action,” (¶4.9) but that he “unduly delayed and caused tentative agreements reached to be abrogated” (¶4.10); and that, as a result, she was “required” ro resign. (¶4.11).
15 that she described these same circumstances as part of a
“fraudulent scheme” and labeled her “required” resignation a
“constructive discharge.” The district court, however, had
already concluded that, even if these allegations were true,
Felder could not defeat Hobby’s qualified immunity defense.
Fatal to her procedural due process claim was her failure to
request a hearing. This failure would remain detrimental to her
due process claim even if discovery revealed that Hobby had
plotted a fraudulent scheme. See Rathjen v. Litchfield, 878 F.2d
836, 839-40 (5th Cir. 1989)(plaintiff who failed to take
advantage of available procedural safeguards was neither denied
due process nor constructively discharged, notwithstanding jury
finding that plaintiff was fraudulently induced to forego
hearing). Thus, it was not an abuse of discretion to deny the
discovery and repleading of irrelevant information.
IV.
For the foregoing reasons, we AFFIRM the judgment of the
district court, which granted summary judgment to defendant-
appellee Hobby, and AFFIRM the district court’s denial of
plaintiff-appellant Felder’s motion for reconsideration to allow
repleading and discovery.