IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-8369
Summary Calendar
Brian Grady, Plaintiff-Appellee,
versus
El Paso Community College, et al., Defendants,
Linda Luehrs Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
Defendant Luehrs appeals the district court's denial of her
motion for dismissal or summary judgment on the basis of qualified
immunity. This interlocutory decision may be appealed under 28
U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S. Ct.
2806, 2816 (1985).
Grady brought this action against his former employer, El Paso
Community College, and two of its faculty members, Luehrs and
Canuteson. Grady claims that the defendants violated his rights
under the First Amendment and 38 U.S.C. § 2021(b)(3). Grady was employed as a probationary instructor in law
enforcement at El Paso Community College, a political subdivision
of the State of Texas. Grady, a Naval reserve officer, also acted
as campus liaison officer for the Navy Recruiting Command. Luehrs
headed the department in which Grady taught. Grady contends that
Luehrs and Canuteson disliked his military affiliation and support
for the Persian Gulf war. Disputed summary judgment evidence shows
conflicts between Grady and Luehrs and Canuteson. According to
Grady's submissions, Luehrs criticized and harassed Grady for
wearing his Navy uniform on campus. Canuteson and Grady argued
over Grady's reservist duties, their effect on his tenure status,
and the war. In December 1991, Grady learned that his teaching
contract would not be renewed at the end of the 1991-92 school
year.
Grady claims that Luehrs and Canuteson wrongfully caused his
termination. Luehrs and Canuteson allegedly conspired to persuade
the College to end Grady's employment, doing so in bad faith and
intending to deprive Grady of his rights.
Luehrs moved for dismissal or summary judgment granting her
qualified immunity. Grady's claim that Luehrs is not a public
official entitled to qualified immunity under any circumstances is
without merit. Grady's complaint states that Luehrs is employed by
the College as a Division Chair for the department in which Grady
was employed. Grady also alleged that Luehrs acted upon authority
vested in her by the College. Public school administrators making
employment decisions are government officials who may receive
2 qualified immunity. See e.g Mangaroo v. Nelson, 864 F.2d 1202 (5th
Cir. 1989).
Our first step when reviewing the denial of qualified immunity
is whether the plaintiff has stated a claim for the violation of
federal rights. See Duckett v. City of Cedar Park, 950 F.2d 272,
278 (5th Cir. 1992). The existence of a viable claim is a
threshold requirement in order for plaintiff to overcome the
qualified immunity defense. Siegert v. Gilley, 111 S. Ct. 1789,
1793 (1991). In this case, Grady has failed to state a valid claim
under § 2021 against Luehrs. 38 U.S.C. § 2021(b)(3) provides that
a person "shall not be denied hiring, retention in employment, or
any promotion or other incident or advantage of employment because
of any obligation as a member of a Reserve component of the Armed
Forces." Reservists may bring an action to compel employers to
comply with § 2021(b)(3)'s requirements and award lost wages. 38
U.S.C. § 2022. An action under §§ 2021 et seq. against Luehrs in
her individual capacity, however, is not appropriate. An action at
law for damages under § 2021 is not available. Britt v. Georgia
Power Co., 677 F. Supp. 1169, 1174 (N.D. Ga. 1987). Instead the
statute provides relief in the form of reinstatement and back pay--
remedies available only from the College. In an analogous
situation, an employer's owner escaped personal liability under
§ 2021 because the plaintiff failed to establish that the owner was
the alter ego of the employer corporation. Chaltry v. Ollie's
Idea, Inc., 546 F. Supp. 44, 52 n.13 (W.D. Mich. 1982).
3 Nor may Grady seek compensation from Luehrs for violating his
reservists' rights by suing under 28 U.S.C. § 1983. A suit may be
brought under § 1983 for the violation of a federal statute. Maine
v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502 (1980). Section 1983 is
not available, however, in two settings: (1) where Congress has
foreclosed § 1983 enforcement in the enactment itself and (2) where
the statute does not create enforceable rights, privileges, or
immunities within the meaning of § 1983. Middlesex Cty. Sewerage
Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.
Ct. 2615, 2626 (1981); Pennhurst State School & Hosp. v. Halderman,
451 U.S. 1, 28, 101 S. Ct. 1531, 1545 (1981). To determine whether
Congress meant to foreclose a § 1983 suit based on the Veterans'
Reemployment Rights Act, we must infer its intent from the Act's
provisions.
One factor implying foreclosure is that the Act provides for
a private judicial remedy. See Victorian v. Miller, 813 F.2d 718,
723 (5th Cir. 1987). Furthermore, in Irby v. Sullivan, 737 F.2d
1418 (5th Cir. 1984), we held that a violation of Title VII cannot
support a § 1983 suit. Id. at 1429. One basis for this decision
was that § 1983 authorized compensatory damages not available under
Title VII, id., which also weighs against § 1983 claims based on
the Veterans' Reemployment Rights Act. See Britt, 677 F. Supp. at
1174. We conclude that § 1983 will not provide a vehicle allowing
4 Grady to make claims against Luehrs based upon the Act.1 Appellant
was entitled to dismissal of all claims under 38 U.S.C. § 2021.
On the other hand, Grady has stated a
§ 1983 claim against Luehrs based upon the First Amendment.
Grady contends that Luehrs deprived him of his right to free speech
under color of state law by causing his termination. He alleges
that Luehrs was motivated to do so by Grady's outspoken support of
the Persian Gulf war. A state educational institution may not
refuse to rehire a non-tenure teacher due to his exercise of
protected First Amendment freedoms. See Mt. Healthy City School
Dist. Bd. of Educ. v.
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-8369
Summary Calendar
Brian Grady, Plaintiff-Appellee,
versus
El Paso Community College, et al., Defendants,
Linda Luehrs Defendant-Appellant.
Appeal from the United States District Court for the Western District of Texas
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:
Defendant Luehrs appeals the district court's denial of her
motion for dismissal or summary judgment on the basis of qualified
immunity. This interlocutory decision may be appealed under 28
U.S.C. § 1291. Mitchell v. Forsyth, 472 U.S. 511, 527, 105 S. Ct.
2806, 2816 (1985).
Grady brought this action against his former employer, El Paso
Community College, and two of its faculty members, Luehrs and
Canuteson. Grady claims that the defendants violated his rights
under the First Amendment and 38 U.S.C. § 2021(b)(3). Grady was employed as a probationary instructor in law
enforcement at El Paso Community College, a political subdivision
of the State of Texas. Grady, a Naval reserve officer, also acted
as campus liaison officer for the Navy Recruiting Command. Luehrs
headed the department in which Grady taught. Grady contends that
Luehrs and Canuteson disliked his military affiliation and support
for the Persian Gulf war. Disputed summary judgment evidence shows
conflicts between Grady and Luehrs and Canuteson. According to
Grady's submissions, Luehrs criticized and harassed Grady for
wearing his Navy uniform on campus. Canuteson and Grady argued
over Grady's reservist duties, their effect on his tenure status,
and the war. In December 1991, Grady learned that his teaching
contract would not be renewed at the end of the 1991-92 school
year.
Grady claims that Luehrs and Canuteson wrongfully caused his
termination. Luehrs and Canuteson allegedly conspired to persuade
the College to end Grady's employment, doing so in bad faith and
intending to deprive Grady of his rights.
Luehrs moved for dismissal or summary judgment granting her
qualified immunity. Grady's claim that Luehrs is not a public
official entitled to qualified immunity under any circumstances is
without merit. Grady's complaint states that Luehrs is employed by
the College as a Division Chair for the department in which Grady
was employed. Grady also alleged that Luehrs acted upon authority
vested in her by the College. Public school administrators making
employment decisions are government officials who may receive
2 qualified immunity. See e.g Mangaroo v. Nelson, 864 F.2d 1202 (5th
Cir. 1989).
Our first step when reviewing the denial of qualified immunity
is whether the plaintiff has stated a claim for the violation of
federal rights. See Duckett v. City of Cedar Park, 950 F.2d 272,
278 (5th Cir. 1992). The existence of a viable claim is a
threshold requirement in order for plaintiff to overcome the
qualified immunity defense. Siegert v. Gilley, 111 S. Ct. 1789,
1793 (1991). In this case, Grady has failed to state a valid claim
under § 2021 against Luehrs. 38 U.S.C. § 2021(b)(3) provides that
a person "shall not be denied hiring, retention in employment, or
any promotion or other incident or advantage of employment because
of any obligation as a member of a Reserve component of the Armed
Forces." Reservists may bring an action to compel employers to
comply with § 2021(b)(3)'s requirements and award lost wages. 38
U.S.C. § 2022. An action under §§ 2021 et seq. against Luehrs in
her individual capacity, however, is not appropriate. An action at
law for damages under § 2021 is not available. Britt v. Georgia
Power Co., 677 F. Supp. 1169, 1174 (N.D. Ga. 1987). Instead the
statute provides relief in the form of reinstatement and back pay--
remedies available only from the College. In an analogous
situation, an employer's owner escaped personal liability under
§ 2021 because the plaintiff failed to establish that the owner was
the alter ego of the employer corporation. Chaltry v. Ollie's
Idea, Inc., 546 F. Supp. 44, 52 n.13 (W.D. Mich. 1982).
3 Nor may Grady seek compensation from Luehrs for violating his
reservists' rights by suing under 28 U.S.C. § 1983. A suit may be
brought under § 1983 for the violation of a federal statute. Maine
v. Thiboutot, 448 U.S. 1, 100 S. Ct. 2502 (1980). Section 1983 is
not available, however, in two settings: (1) where Congress has
foreclosed § 1983 enforcement in the enactment itself and (2) where
the statute does not create enforceable rights, privileges, or
immunities within the meaning of § 1983. Middlesex Cty. Sewerage
Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 20, 101 S.
Ct. 2615, 2626 (1981); Pennhurst State School & Hosp. v. Halderman,
451 U.S. 1, 28, 101 S. Ct. 1531, 1545 (1981). To determine whether
Congress meant to foreclose a § 1983 suit based on the Veterans'
Reemployment Rights Act, we must infer its intent from the Act's
provisions.
One factor implying foreclosure is that the Act provides for
a private judicial remedy. See Victorian v. Miller, 813 F.2d 718,
723 (5th Cir. 1987). Furthermore, in Irby v. Sullivan, 737 F.2d
1418 (5th Cir. 1984), we held that a violation of Title VII cannot
support a § 1983 suit. Id. at 1429. One basis for this decision
was that § 1983 authorized compensatory damages not available under
Title VII, id., which also weighs against § 1983 claims based on
the Veterans' Reemployment Rights Act. See Britt, 677 F. Supp. at
1174. We conclude that § 1983 will not provide a vehicle allowing
4 Grady to make claims against Luehrs based upon the Act.1 Appellant
was entitled to dismissal of all claims under 38 U.S.C. § 2021.
On the other hand, Grady has stated a
§ 1983 claim against Luehrs based upon the First Amendment.
Grady contends that Luehrs deprived him of his right to free speech
under color of state law by causing his termination. He alleges
that Luehrs was motivated to do so by Grady's outspoken support of
the Persian Gulf war. A state educational institution may not
refuse to rehire a non-tenure teacher due to his exercise of
protected First Amendment freedoms. See Mt. Healthy City School
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 283-84, 97 S. Ct. 568,
574 (1977).
Luehrs contended that even after amending his complaint, Grady
failed to satisfy the heightened pleading requirement of Elliott v.
Perez, 751 F.2d 1472 (5th Cir. 1985). On the contrary, Grady's
Second Amended Complaint sufficiently states grounds for denying
qualified immunity. Grady alleged that Luehrs acted as division
chair for the department in which he worked and used that position
to prevent the renewal of his employment contract. The complaint
alleges that Luehrs was motivated to do so by his expression of
protected speech on a matter of public concern, United States
military involvement in the Persian Gulf. Although Grady does not
1 We are not persuaded by the district court decision in Boyle v. Board of Police Commissioners, 717 F. Supp. 23, 27 (D.N.H. 1989), which allowed a § 1983 claim based on the Veterans' Reemployment Rights Act. Boyle's cursory analysis stated that Congress must "specifically foreclose" § 1983 enforcement, rather than examining the statute to infer intent.
5 specifically allege when he made the protected statements or how
Luehrs was made aware of them, his allegation that she was
motivated by those statements necessarily entails her awareness.
Because Grady's complaint states a violation of federal
rights, we turn to the question of whether Grady has met his burden
on summary judgment of showing that Luehrs' conduct does not
entitled her to qualified immunity. See Chrissy F. v. Mississippi
Dep't of Public Welfare, 925 F.2d 844, 851 (5th Cir. 1991)(holding
that plaintiff bears the burden of negating the qualified immunity
defense). On summary judgment, the nonmoving party who bears the
burden of proof on an issue may not rely upon his pleadings, but
must present evidence to show a genuine issue of fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 324, 106 S. Ct. 2548, 2553 (1986).
Grady points to affidavits in the record to show an issue regarding
whether Luehrs retaliated against Grady for his speech. Michael
Faupel's affidavit states Grady and Canuteson argued concerning
Grady's reserve membership and the Persian Gulf war. During this
argument, Faupel states, Canuteson told Grady that Canuteson and
Luehrs could "get rid of Mr. Grady." Although other testimony that
Luehrs disliked Grady personally and his membership in the reserves
does not support the First Amendment claim, Faupel's testimony
creates an issue of fact precluding summary judgment.
An official is entitled to qualified immunity unless her
conduct violated clearly established federal rights. Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 2738 (1982). The
contours of the right must be sufficiently clear that a reasonable
6 official would understand that what she is doing violates that
right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034,
3039 (1987). The First Amendment protections of state employees
who speak on matters of public concern are clearly established.
See e.g. Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 97 S. Ct. 568 (1977). Moreover, a reasonable official
would have recognized that speech regarding the Persian Gulf war
constituted a matter of public concern. A genuine issue exists
regarding whether Luehrs brought about the end of Grady's
employment in response to his protected speech. Luehrs was not
entitled to qualified immunity against Grady's First Amendment
claim.
The district court should have granted Luehrs' motion in part,
by dismissing claims against her individually based on the
Veterans' Reemployment Rights Act. Luehrs was not entitled,
however, to summary judgment based on qualified immunity against
Grady's First Amendment claims.
REVERSED in part and AFFIRMED in part.