IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 97-60086
Summary Calendar
ALFRED SHORT,
Plaintiff-Appellant,
versus
CITY OF WEST POINT, MISSISSIPPI;
RICHARD STRIPLING,
Defendants-Appellees.
Appeal from the United States District Court
For the Northern District of Mississippi
USDC No. 1:95-CV-359-D-D
August 29, 1997
Before KING, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:*
Alfred Short appeals the district court’s grant of summary
judgment in favor of defendants. Short attempts to convince us
that the filing of his EEOC charge is protected speech under the
First Amendment. We disagree and affirm the decision of the lower
court.
*
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this opinion should not be published and is not precedent except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.
Short began working for the City of West Point Fire Department
on January 16, 1992, as a firefighter/EMT. At the time, he was
residing in Macon, Noxubee County, Mississippi. An explicit
qualification for employment in the West Point Fire Department was
residence in Clay County. In July of 1994, a position as
Engineer/Pump Operator opened at the Fire Department. Short
applied for the job and made the highest grade on the test, but he
did not get the promotion. The men promoted had several years more
experience than Short and were white.
On November 1, 1994, Short filed an EEOC charge. The EEOC,
however, found that the other two applicants were more qualified
and issued a right-to-sue letter. By the time Short filed his
Title VII claim, the statute of limitations had run.
Short was fired for failing to comply with the residency
regulation. On November 24, 1995, he filed this suit, which
alleges both race discrimination and a violation of the First
Amendment. The district court granted summary judgment to the
defendants on the race discrimination claim, and Short has not
appealed that ruling. In his remaining claim, Short asserts that
the filing of an EEOC charge is protected under the First Amendment
and that his firing constitutes an unconstitutional retaliatory
action on the part of West Point.
This case is controlled by Ayoub v. Texas A&M Univ., 927 F.2d
834 (5th Cir. 1986), cert. denied, 479 U.S. 1064, 107 S.Ct. 948
(1987). In Ayoub, the plaintiff filed a discrimination complaint
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based on his belief that he was paid a salary that reflected a
discriminatory pay scale that penalized foreign-born professors and
rewarded white, American professors. Additionally, he claimed that
his office was relocated in retaliation for engaging in
constitutionally protected speech: the filing of an EEOC charge.
We held that Ayoub’s speech was not protected because it did not
address a matter of public concern. Lodging a complaint with the
EEOC, without further airing of grievances, creates a private,
personal dispute between employer and employee. It does not create
a generalized petition for a remedy to a public problem. Id. at
837-838.
Short also relies on the theory that the First Amendment gives
special protection to EEOC claims. This argument rests on the view
that 42 U.S.C. §2000e-3(a) affords unqualified protection to the
filing of these claims. However, we held in Rathjen v. Litchfield
that “[t]he law is no different where the act which allegedly gave
rise to the retaliation claim is the filing of a grievance or a
lawsuit.” 878 F.2d 836, 842 (5th Cir. 1989). Both are subject to
the qualification that the complaint be a matter of public concern.
This type of speech is not protected by the First Amendment because
it concerns merely personal employment status.
AFFIRMED.
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