United States Court of Appeals,
Fifth Circuit.
No. 91–4618
Summary Calendar.
Marilyn WILSON, Plaintiff–Appellant,
v.
UT HEALTH CENTER, UT System Police Department, Etc., et al., Defendants–Appellees.
Oct. 6, 1992.
Appeal from the United States District Court for the Eastern District of Texas.
Before REAVLEY, HIGGINBOTHAM and BARKSDALE, Circuit Judges.
REAVLEY, Circuit Judge:
Marilyn Wilson contends that officials of the University of Texas Health Center (UTHC)
demoted and discharged her from her position as a sergeant in retaliation for her reports of sexual
harassment within the UTHC police force. At the close of Wilson's case-in-chief, the district court
granted all defendants a directed verdict on Wilson's First Amendment and due process claims under
42 U.S.C. § 1983 and on her defamation claim under Texas law. After considering both sides'
evidence, the district court entered judgment against Wilson on her claim under 42 U.S.C. § 2000e
et seq. (Title VII) 773 F.Supp. 958. We affirm in part and reverse in part to allow a jury to consider
Wilson's First Amendment and defamation claims against some defendants.
I. BACKGROUND
The events that occasioned this controversy occurred on UTHC's Tyler, Texas campus
between August 1986 and March 1987. During that time, uncontroverted evidence establishes that
UTHC po lice officers commonly used sexually suggestive language in communicating with one
another. Wilson claims that UTHC officials disciplined her for reporting various incidents of sexual
harassment. The officials claim that they disciplined Wilson because she made several
misrepresentations in reporting those incidents to her immediate supervisor, po lice chief and defendant John Moore, and in appealing from disciplinary action that Moore took against her.
Wilson's troubles began in August 1986 when she brought a camera lens to the UTHC campus
so that her co-worker and subordinate, defendant Chester Davis, could evaluate it.1 Wilson claims
that, instead of going to a hilltop to view the lens, Davis took her to a secluded place, grabbed her
and kissed her on the neck despite her protestations and said that he would have his way with her.
Davis denies any such contact or statement.
Almost one month later, Wilson reported the incident to UTHC's Acting Director of
Personnel, Sharon Briery, who advised that she see Chief Moore. According to Moore's instructions,
Wilson prepared a written report of the incident and also detailed incidents of Davis's verbal sexual
misconduct toward three other UTHC employees. Davis admitted harassing one of these employees
and Moore suspended him three days without pay for making sexually suggestive comments to
women.2 Moore also issued a letter of reprimand to Wilson for waiting so long to report Davis'
conduct, stating:
You, as a supervisor and an officer, have a duty to speak out. You cannot unclothe yourself of duty at your convenience. In this matter, you undressed yourself of responsibility both mentally and administratively by alleging intimidation and by waiting twenty-eight days before taking any action and/or reporting the incident to me.
Meanwhile, on October 30, 1986, Wilson went to Moore and said that she had hearsay
evidence that Officer Bill Glover had been harassing two other UTHC employees, including Nancy
Simms. Moore asked Wilson to investigate further, and he testified that he immediately reprimanded
Glover. Wilson submitted a letter to Moore concerning Glover's requests that Simms spend time with
him outside work and Glover's expenditure of inordinate amounts of time at Simms' place of work.
1 Davis and Wilson had some disagreements in 1984, but there was evidence that by August 1986 they appeared to be friends. For example, they bowled on a team together. 2 Davis has also acknowledged such antics as giving black panties to a married woman, but the record does not show that he was reprimanded for any of these other sexually suggestive incidents. Glover admitted asking Simms out for coffee, but denied many aspects of Wilson's report, including
that he flirted with Simms. At a subsequent meeting with Moore and Wilson, and later at trial, Simms
agreed with Glover's version of events and identified several exaggerations in Wilson's report.
On February 5, 1987, Moore issued Wilson a letter of reprimand, suspended her for ten days
without pay, and reduced her in rank from sergeant to police officer. In his letter, Moore cites several
incidents beginning in 1984 and concluding with the Glover incident in which he understands Wilson
to have lied and maliciously maligned her fellow officers. Wilson indicated that she had read and
understood Moore's letter by signing it, and then she signed a Personnel Disciplinary Report (PDR)
form that Moore prepared concerning the matter for submission to the University System Police in
Austin, Texas.
The PDR that Wilson signed for Moore (Moore's PDR) references attached documentation.
Wilson asked to see the attachments and to have a copy of the PDR. Moore refused, but he allowed
Wilson to copy the sparse information from the PDR by hand. She then paraphrased this information
on a new PDR form (Wilson's PDR). Wilson gave Wilson's PDR to her attorney. At a subsequent
hearing that constituted part of Wilson's appeal of her demotion, Wilson's attorney demanded the
attached documentation from Moore's supervisor, defendant Ron Mays. Wilson's attorney presented
Mays with Wilson's PDR without stating that it was not an exact duplicate of Moore's PDR.
Mays took Wilson's PDR to Moore and asked for the attached documentation that it
referenced. Moore did not recognize Wilson's PDR as the one he prepared. He and Mays compared
the PDRs and discovered that they did not match. Two days later, on March 5, 1987, Moore
presented Wilson with a letter of termination, citing Wilson's continued misrepresentations in the PDR
incident as the reason for her discharge.
Wilson appealed her termination through UTHC channels and ultimately sued Davis, Moore, Mays, Henry Jackson (UTHC's Director of Equal Employment Opportunity), and George Hurst
(UTHC's Director), among others, for, inter alia, depriving her of constitutional rights to free speech
and due process, defamation, and retaliatory discharge in contravention of Title VII.
After Wilson's case-in-chief,3 the district court directed a verdict against Wilson 1) on her First
Amendment claim after holding that Wilson's speech regarded a matter of insufficient public concern
to merit protection, 2) on her due process claim after holding that Wilson received constitutionally
sufficient process, and 3) on her defamation claim after holding that Wilson produced insufficient
evidence of malice on the defendants' part. The court then continued the trial to resolve Wilson's
Title VII retaliatory discharge claim and entered judgment against Wilson after hearing the evidence.
The court found that Wilson made misrepresentation in her report about Glover and that Moore
demoted her because of those misrepresentations, and then terminated her because she misrepresented
the authenticity of the PDR that her attorney handed to Mays.
II. DISCUSSION
A. TITLE VII
Wilson tried her Title VII claim to the court as required by statute before Congress permitted
jury trials of these cases in the Civil Rights Act of 1991. Our precedent precludes us from heeding
Wilson's suggestion that we accord retroactive effect to the jury trial provision of the Civil Rights Act
of 1991. Landgraf v. USI Film Products, 968 F.2d 427, 432–33 (5th Cir.1992).
Wilson argues that the district court applied the wrong legal standard in deciding that she was
not discharged in retaliation for reporting sexual harassment as prohibited by 42 U.S.C. § 2000e–3(a).
First, she claims that the court ignored the distinction between the truth of her charges and her belief
in the truth of her charges. See De Anda v. St. Joseph Hosp., 671 F.2d 850, 853 n. 2 (5th Cir.1982)
("reasonable belief" that employer engages in discriminatory practices sufficient to invoke Title VII
3 The district court heard the testimony of Moore, Wilson, Jackson, and Davis. protection); Berg v. La Crosse Cooler Co., 612 F.2d 1041, 1045–46 (7th Cir.1980) (employee who
makes good faith, reasonable charges that employer's practice violates Title VII is protected from
retaliatory discharge though charges unfounded). But the court found the opposite of good faith on
Wilson's part; it found that she knowingly made several misrepresentations to Moore, which caused
her demotion and termination.
The court's findings also destroy Wilson's contention that she is entitled to recover under Title
VII even if the defendants discharged her for both legitimate and illegitimate reasons. See Price
Waterhouse v. Hopkins, 490 U.S. 228, 241, 109 S.Ct. 1775, 1785, 104 L.Ed.2d 268 (1989) ("Title
VII meant to condemn even those decisions based on a mixture of legitimate and illegitimate
considerations"). The court concluded that Wilson did not prove that her reports of sexual
harassment caused her termination and that her misrepresentations did.
Wilson next argues that the fact findings on which the court based its Title VII judgment are
clearly erroneous. Our review of the record convinces us that ample evidence supports both Wilson's
and the defendants' opposite positions concerning the reasons for the disciplinary action taken against
Wilson. We are bound in such cases to defer to the credibility determinations of the trier of fact.
Finally, Wilson argues that Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th
Cir.1969), requires a different standard than that applied by the district court to decide whether the
defendants disciplined her for legitimate or illegitimate reasons. She claims that Pettway interprets
Title VII to prevent an employer from making a disciplinary decision based on its evaluation of the
veracity of an employee's allegations that concern an activity that Title VII protects, such as
complaints about sexual harassment. No court has read Pettway so broadly, and we see no
justification for doing so now.
Pettway concerns a letter written by Peter Wrenn to the chairman of the Equal Employment Opportunity Commission (EEOC) in which Wrenn complained of his employer's discriminatory
practices. Wrenn's employer got a copy of the letter and discharged him for making
misrepresentations in the letter. This court held that "where, disregarding the malicious material
contained in a charge (or ... other communication with EEOC sufficient for EEOC purposes, or in
a proceeding before EEOC) the charge otherwise satisfies the liberal requirements of a charge, the
charging party is exercising a protected right under [Title VII]." Id. at 1007. The Pettway court
understood that if it did not protect employee statements in EEOC proceedings, the EEOC's ability
to administer Title VII would be impaired. Id. at 1005. Applying its understanding of the law, the
Pettway court found that Wrenn's submission of the letter to the EEOC was protected by Title VII
and his employer violated that statute by discharging him for making misrepresentations in the letter,
even if a court later agreed with the employer that Wrenn's statements were misrepresentations. Id.
at 1007–08.
Pettway does not protect Wilson from the consequences of any misrepresentations that she
made to Moore or Mays, because she made any such misrepresentations outside the context of any
EEOC proceeding. The Pettway court expressly refused to "decide whether a writing purporting to
be and to be used as a charge, which does not meet the requisites of a charge such as is required to
set the EEOC machinery in operation is protected." Id. at 1007. Thus, Pettway only protects
employees from retaliation for misrepresentations made in certain documents or statements in EEOC
proceedings. Pettway's rationale entirely depends on EEOC's function in the administration of Title
VII, so we cannot extend Pettway's holding to extra-EEOC proceedings without a reason for doing
so.
We thus affirm the district court's judgment dismissing Wilson's Title VII claims.
B. SECTION 1983
1. First Amendment Wilson claims that the defendants deprived her of her constitutional right to free speech under
color of law in contravention of 42 U.S.C. § 1983 by discharging her in retaliation for her speech
about sexual harassment by UTHC police officers. This claim resembles Wilson's Title VII claim, but
Title VII does not preempt a collateral section 1983 action based on the same incident. Johnston v.
Harris County Flood Control Dist., 869 F.2d 1565, 1573–76 (5th Cir.1989), cert. denied, 493 U.S.
1019, 110 S.Ct. 718, 107 L.Ed.2d 738 (1990). The district court directed a verdict against Wilson
on her First Amendment claim after ruling that her speech concerned a matter of insufficient public
concern to merit constitutional protection.
"[W]hen a public employee speaks not as a citizen upon matters of public concern, but instead
as an employee upon matters only of personal interest, absent the most unusual circumstances, a
federal court is not the appropriate forum in which to review the wisdom of a personnel decision
taken by a public agency allegedly in reaction to the employee's behavior." Connick v. Myers, 461
U.S. 138, 147, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983) (emphasis added). Exercising de novo
review, "we decide whether speech addresses a matter of public concern with reference to the
"content, form and context of a given statement, as revealed by the whole record.' " Johnston, 869
F.2d at 1577 (quoting Connick, 461 U.S. at 147–48, 103 S.Ct. at 1690).
The content of Wilson's speech—reports of sexual harassment perpetrated on her and other
women at UTHC4—is of great public concern. Cf. Connick, 461 U.S. at 148, 103 S.Ct. at 1691 n.
8 (plaintiff's constitutional "right to protest racial discrimination [is] a matter inherently of public
concern," citing Givhan v. Western Line Consolidated School Dist., 439 U.S. 410, 415–16, 99 S.Ct.
693, 696–97, 58 L.Ed.2d 619 (1979)).
4 The defendants argue that the falsity of Wilson's charges forfeits any constitutional protection that they would otherwise enjoy. But, as we stated in our discussion of Wilson's Title VII claim, the evidence in this case conflicts on the veracity of Wilson's statements. Before the district court directed a verdict on Wilson's First Amendment claim under section 1983, a jury sat as the trier of fact for this claim. Thus, the district court's findings as to Wilson's Title VII claim do not apply to her section 1983 claim. The defendants rely on Terrell v. University of Texas System Police, 792 F.2d 1360 (5th
Cir.1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948, 93 L.Ed.2d 997 (1987) in arguing that
Wilson's speech was not of public concern. The Terrell court held that the speech at issue was not
of public concern in part because the speech consisted exclusively of criticisms of the competence of
the speaker's supervisor. Id. at 1362; see also Connick, 461 U.S. at 147–48, 103 S.Ct. at 1690–91
(employee intra-office questionnaire was not speech of public concern inasmuch as questionnaire
sought employee opinions on office's transfer policy). Terrell and Connick are thus distinguishable
because the only reason that the public would be concerned about the speech there at issue was
because it involved a public workplace. See Terrell, 792 F.2d at 1362 ("almost anything that occurs
within a public agency could be of concern to the public"). This court before has cited Terrell in
identifying this critical distinction between speech concerning personnel policies and that concerning
public official misconduct, and designated the latter of "public concern." Brawner v. City of
Richardson, Tex., 855 F.2d 187, 191–92 & nn. 10–14 (5th Cir.1988).
The defendants also argue that because Wilson acknowledged some duty as a police officer
to report sexual harassment, she made the reports as an employee, not as a citizen. But practically,
such a rule would permit public employers to remove constitutional protection from speech on certain
subjects by including those subjects within employees' reporting duties. Any employer can require
employees to report sexual harassment; because some forms of harassment are not criminal offenses,
the reporting of harassment does not fall within the special province of police officers. Thus, the rule
proposed by the defendants could ironically facilitate the suppression of speech through a requirement
that the speech be made.
We return to Connick to determine the significance of an employee's duty to speak in the
"public concern" determination. Connick "hold[s] only that when a public employee speaks not as
a citizen upon matters of public concern, but instead as an employee upon matter only of personal
interest," the First Amendment does not protect the employee from discipline for speaking. 461 U.S. at 147, 103 S.Ct. at 1690 (emphasis added). The words "not" and "instead" in this key statement can
only mean that the Court removed from First Amendment protection only that speech that is made
only as an employee, and left intact protection for speech that is made both as an employee and as
a citizen.
We think that Wilson made her reports of sexual harassment both as a citizen and an
employee. She contends that she started her reports after personally experiencing considerable
harassment, and obviously had a stake as an individual citizen in having that conduct stopped,
regardless of whether her reports also coincided with her job responsibilities.
Nor did Wilson forfeit her right to speak by choosing an internal forum to speak as a citizen
about sexual harassment within the UTHC police force. See Givhan, 439 U.S. at 415–16, 99 S.Ct.
at 696–97; see also Johnston, 869 F.2d at 1577 (employee's testimony in a closed hearing convened
to review intragovernment employment dispute is of public concern, and therefore protected speech).
Having considered the jurisprudence and the parties' contentions, we conclude that the district court
erred in holding that Wilson's speech was not of public concern.
Though the speech of public employees may be of public concern, that speech still does not
enjoy First Amendment protection if legitimate government interests in limiting the speech outweigh
the employees' interest in speaking. See Connick, 461 U.S. at 150–51, 103 S.Ct. at 1691–92 (citing
Pickering v. Board of Education, 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968)). The
defendants invite us to affirm the district court's dismissal of Wilson's First Amendment claim on the
ground that her interest in reporting sexual harassment is outweighed by UTHC's interest in
eliminating dissension among its employees and in providing efficient police protection. We cannot
accept this invitation because the defendants prematurely assume a finding that Wilson did not speak
in good faith. If a jury determines that she reported sexual harassment in good faith, then UTHC's
interest in maintaining a police force that is free of sexual intimidation, which Wilson's good faith reports would serve, outweighs any interest in departmental efficiency and harmony.
Finally, the defendants argue that Wilson produced insufficient evidence that they retaliated
against her for her speech, so we may affirm the district court's directed verdict on this ground. After
reviewing the record, we agree as to defendants Davis and Hurst. Moore and Mays decided to
discipline Wilson and Jackson reviewed that decision, so each could have retaliated against Wilson
for her protected speech. And any retaliation for Wilson's speech on a matter of such prominent
public concern as workplace sexual harassment represents a violation of a clearly established right,
so under Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982),
these defendants are not entitled to qualified immunity. On remand, a jury will decide whether they
in fact retaliated against Wilson for her protected speech.
2. Due Process
The district court directed a verdict against Wilson on her due process claim under section
1983 after ruling that Wilson's own evidence showed that she received constitutionally sufficient
process in each instance in which the defendants took disciplinary action against her. Wilson argues
that she received insufficient pre-disciplinary process. But even when a government terminates an
employee, the Constitution only requires notice and an opportunity to respond prior to termination.
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546, 105 S.Ct. 1487, 1495, 84 L.Ed.2d 494
(1985). The record establishes that Wilson got this much process in each instance in which the
defendants disciplined her. We thus affirm the district court's judgment as to Wilson's due process
claim under section 1983.
C. DEFAMATION
Wilson claims that the court erred in directing a verdict against her on her defamation claims
against Mays and Moore under Texas law. The court held that Wilson could not prevail because she
adduced insufficient evidence of malice. See Ramos v. Henry C. Beck Co., 711 S.W.2d 331, 335 (Tex.App.—Dallas 1986, no writ) (privilege for employer's accusations against employee, made to
person with common interest in employee's discharge, lost if plaintiff carries burden of proving that
communication made with malice). In considering a motion for a directed verdict in a jury trial, the
court must "consider all the evidence ... in the light and with all reasonable inferences most favorable
to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly
in favor of one party that the Court believes that reasonable men could not arrive at a contrary
verdict, granting the motion[ ] is proper." Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969)
(en banc). We apply this same standard in reviewing the district court's decision. Id. at 377.
Applying the Boeing standard, we think that Wilson presented sufficient evidence of malice
to survive summary judgment. Mays and Moore portrayed Wilson as a forger and a liar in her letter
of termination. Wilson testified that neither of these were true and asked the jury to infer that Moore
and Mays said these things to justify terminating her when they really wanted to discharge her for
reporting sexual harassment. Based on the evidence presented, the jury was entitled to accept this
version of events and find that Moore and Mays acted with malice.
The defendants claim that, under Pennhurst State School & Hosp. v. Halderman, 465 U.S.
89, 101–02, 104 S.Ct. 900, 908–909, 79 L.Ed.2d 67 (1984), the Eleventh Amendment precludes the
district court from exercising jurisdiction over Wilson's state-law defamation claim against state
officials. But the district court dismissed all claims against UTHC and the defendants in their official
capacities before directing a verdict on the defamation claim as to Moore and Mays in their individual
capacities. Pennhurst and the Eleventh Amendment do not deprive federal courts of jurisdiction over
state law claims against state officials strictly in their individual capacities. Voisin's Oyster House,
Inc. v. Guidry, 799 F.2d 183, 187–88 (5th Cir.1986). Thus, the district court properly exercised
jurisdiction over Wilson's defamation claims against Mays and Moore.
III. CONCLUSION We REVERSE the district court's judgment insofar as it dismisses Wilson's First Amendment
claims under section 1983 against Jackson, Mays, and Moore, and insofar as it dismisses Wilson's
defamation claims against Mays and Moore. We AFFIRM the court's judgment in all other respects.
We REMAND this case for further consideration.