REVISED, February 2, 1998
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-41192
_____________________
ETHEL JONES,
Plaintiff-Appellee,
v.
GARY COLLINS, Superintendent of Texarkana Independent
School District
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Texas
_________________________________________________________________
January 9, 1998
Before KING, DUHÉ, and WIENER, Circuit Judges.
KING, Circuit Judge:
Defendant-appellant Gary Collins, the superintendent of
Texarkana Independent School District, appeals the district
court’s partial denial of his motion for summary judgment on the
ground that a fact issue exists as to whether he possesses
qualified immunity from liability for plaintiff-appellee Ethel
Jones’s claim, asserted under 42 U.S.C. § 1983, that Collins
violated her First Amendment rights. Because we find that the
evidence in the summary judgment record, construed in the light
most favorable to Jones, indicates that Collins did not violate
Jones’s First Amendment right to free expression, we reverse the
district court’s order denying Collins’s motion for summary
judgment on his defense of qualified immunity and remand for
entry of judgment granting this portion of the motion.
I. FACTS & PROCEDURAL BACKGROUND
This case arises out of the transfer of plaintiff-appellee
Ethel Jones from her position as principal of Dunbar Elementary
School (“Dunbar”) to the position of assistant principal of
Westlawn Elementary School (“Westlawn”) in July 1993. Defendant-
appellant Gary Collins, the superintendent of Texarkana
Independent School District (“TISD”), recommended this transfer,
and the TISD Board of Trustees (the “Board”) approved it.
Jones served as Dunbar’s principal from the 1986-87 school
year through the 1992-93 school year. Her performance
evaluations for the 1987-88 through the 1990-91 school years
reflect that Collins gave Jones ratings of “clearly outstanding”
or “exceeds expectations” in most of the evaluation categories.
On February 22, 1992, Jones attended a Board retreat at
which Board members discussed possible locations for a proposed
alternative education program for the school district to cope
with the educational needs of emotionally disturbed and at-risk
students. Jones later asked Collins if Dunbar was a potential
site for the alternative education program. Collins responded
that this was possible because Dunbar had extra rooms available
that could be allocated to the program. Collins contends that he
discussed the possibility of Dunbar serving as the site of the
alternative education program with no one other than Jones.
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In May or June of 1992, after Jones’s conversation with
Collins regarding the location of the alternative education
program, representatives from the community appeared at a Board
meeting and voiced opposition to the prospect of placing the
alternative education program at Dunbar. The Board president
informed the parents that the Board did not intend to place the
alternative education program at Dunbar. Collins surmised that
the parents must have received the information regarding the
possibility of placing the program at Dunbar from Jones because
he had discussed the matter with no one else. When confronted by
Collins, Jones denied leaking information to the community.
In Jones’s 1991-92 employment evaluation, Collins stated
that Jones “[i]sn’t supportive of controversial approaches [and]
doesn’t like to be in [the] line of fire on any decision.” In an
attachment to the evaluation, Collins explained that, after
discussing with Jones the possibility of placing the alternative
education program at Dunbar, various members of the faculty and
parents of Dunbar students complained about locating the program
at Dunbar. The attachment also stated the following with regard
to the alternative education program’s location:
The Board of Trustees, when making decisions as to the
utilization of facilities, makes their determination in
the best interest of all students in this district.
Before that decision is made, options will be
discussed, alternatives weighed, and a rational
decision arrived at by consensus. Up until that event
occurs, you are to support the administration and Board
of Trustees in their attempts to determine the best use
of facilities for the students and instructional
program of this district. You are not to work behind
our backs in an effort to salvage what you consider the
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most important use of a facility nor use other
individuals to carry out your point of view.
Collins recommended that Jones’s contract be renewed for another
year.
In Jones’s evaluation for the 1992-93 school year, Collins
rated Jones’s performance in many evaluation categories as
“unsatisfactory” and recommended that the district not renew her
contract. In a memorandum accompanying the evaluation form,
Collins listed a number of alleged deficiencies in Jones’s
performance, and discussed in particular her alleged
“gamesmanship” in inciting unrest in the community regarding
district policy affecting Dunbar. The evaluation states that
Jones’s “community involvement consisted of creating controversy
over items [she] did not want on the Dunbar campus.” The
evaluation also reiterated Collins’s belief that Jones had spoken
negatively with members of the community regarding the
possibility of placing the alternative education program on the
Dunbar campus.
Jones’s contract with TISD covering the 1992-93 and 1993-94
school years provided that Jones could be transferred between
administrative positions within the district at the sole
discretion of the superintendent so long as her salary was not
reduced as a result of the transfer. On July 21, 1993, Collins
attempted to transfer Jones to a teaching position. However,
counsel for the school district informed him that, under the
terms of the contract then in effect between Jones and TISD,
Collins could not transfer Jones from an administrative position
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to a teaching position. Collins thereafter reassigned Jones to
the position of assistant principal of Westlawn.
Jones exhausted her administrative remedies and, on
September 29, 1995, filed suit against TISD and Collins both in
his individual capacity and his official capacity as
superintendent of TISD (collectively “Defendants”). Jones
alleged various violations of the U.S. Constitution, including
claims that her transfer deprived her of property and liberty
interests without due process and a claim that her reassignment
constituted retaliation for exercise of her First Amendment right
to free speech. Jones also asserted parallel claims under the
Texas Constitution. Defendants answered and affirmatively
pleaded the defense of qualified immunity on behalf of Collins in
his individual capacity. Defendants moved for summary judgment
on all claims, including Collins’s claim of qualified immunity.
The district court granted Defendants’ motion for summary
judgment except as to Jones’s First Amendment retaliation claim
and Collins’s defense of qualified immunity. Collins appeals the
district court’s refusal to grant summary judgment on Jones’s
First Amendment retaliation claim on grounds of qualified
immunity.
II. APPELLATE JURISDICTION
Although Jones has not argued that this court lacks
jurisdiction over the instant appeal, we nonetheless address the
issue sua sponte. See Joseph v. City of New Orleans, 110 F.3d
252, 253 (5th Cir. 1997); Pemberton v. State Farm Mut. Auto. Ins.
5
Co., 996 F.2d 789, 791 (5th Cir. 1993). The Supreme Court has
held that “[a]ppeals from district court orders denying summary
judgment on the basis of qualified immunity are immediately
appealable under the collateral order doctrine, when based on an
issue of law.” Cantu v. Rocha, 77 F.3d 795, 802 (5th Cir. 1996)
(citing Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)). In this
context, an appeal is based on “issues of law” if the issues it
raises “concern only application of established legal principles,
such as whether an official’s conduct was objectively reasonable
in light of clearly established law, to a given (for purposes of
appeal) set of facts.” See id. (citing Johnson v. Jones, 515
U.S. 304, 313 (1995). However, if the appeal involves a matter
of evidentiary sufficiency, i.e., if the party moving for summary
judgment merely disputes the district court’s determination that
the nonmoving party may be able to prove at trial a fact that is
material to the appellant’s entitlement to qualified immunity,
then the district court’s denial of summary judgment is not
immediately appealable. See id.
Collins contends on appeal that the summary judgment
evidence, viewed in the light most favorable to Jones, indicates
that he did not violate Jones’s constitutional rights. He does
not contend that the district court erroneously determined that
the summary judgment record indicates that disputes exist as to
factual issues material to Jones’s claim. We therefore possess
jurisdiction over Collins’s appeal and proceed to its merits.
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III. STANDARD OF REVIEW
“This court reviews de novo the denial of a public
official’s motion for summary judgment predicated on qualified
immunity.” Southard v. Texas Bd. of Criminal Justice, 114 F.3d
539, 548 (5th Cir. 1997); see also Johnston v. City of Houston,
14 F.3d 1056, 1059 (5th Cir. 1994). We therefore apply the same
criteria used by the district court in the first instance. See
Texas Manufactured Housing Ass’n v. City of Nederland, 101 F.3d
1095, 1099 (5th Cir. 1996), cert. denied, 117 S. Ct. 2497 (1997).
Summary judgment is proper only “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
judgment as a matter of law.” FED. R. CIV. P. 56(c); see also
Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
IV. ANALYSIS
While the nature of Jones’s First Amendment claim is not
altogether clear from her pleadings at the district court level
and her brief on appeal, her claim appears to be that Collins
retaliated against her based upon his perception that she spoke
negatively to members of the local community about the prospect
of placing the TISD alternative education program at Dunbar.
With this understanding of the claim in mind, we turn to the
legal standard applicable in evaluating Collins’s entitlement to
qualified immunity from liability based on the claim.
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A. Qualified Immunity Standard
A determination of whether a public official is entitled to
qualified immunity from liability under § 1983 potentially
involves a two-step analysis. First, if the official’s conduct
did not violate a clearly established constitutional right, the
official is entitled to qualified immunity. See Nerren v.
Livingston Police Dep’t, 86 F.3d 469, 473 (5th Cir. 1996). That
is, in order for immunity not to attach, the official’s conduct
must have violated a right recognized under current
constitutional law, and that right must have been clearly
established at the time of the official’s conduct. See Siegert
v. Gilley, 500 U.S. 226, 231-32 (1991) (“Once a defendant pleads
a defense of qualified immunity, on summary judgment, the judge
appropriately may determine, not only the currently applicable
law, but whether the law was clearly established at the time an
action occurred. . . . A necessary concomitant to the
determination of whether the constitutional right asserted by a
plaintiff is clearly established at the time the defendant acted
is the determination of whether the plaintiff has asserted a
violation of a constitutional right at all.” (internal quotation
marks and alteration omitted)). Second, even if the official’s
conduct violated a clearly established constitutional right, the
official is nonetheless entitled to qualified immunity if his
conduct was objectively reasonable. See Nerren, 86 F.3d at 473.
We need not reach the second step of this analysis because the
summary judgment evidence, construed in the light most favorable
8
to Jones, indicates that Collins did not violate Jones’s First
Amendment right to free expression.
B. First Amendment Law
A state may not deny an individual public employment or
benefits related thereto based on the individual’s exercise of
her First Amendment right to free expression even when the
individual lacks a liberty or property interest in the employment
or related benefit. See Rankin v. McPherson, 483 U.S. 378, 383-
84 (1987) (“Even though McPherson was merely a probationary
employee, and even if she could have been discharged for any
reason or for no reason at all, she may nonetheless be entitled
to reinstatement if she was discharged for exercising her
constitutional right to freedom of expression.”); Connick v.
Myers, 461 U.S. 138, 143-45 (1983); Pickering v. Board of Educ.,
391 U.S. 563, 568 (1968); Thompson v. City of Starkville, 901
F.2d 456, 460 (5th Cir. 1990). However, a government’s interest
in insuring that its agencies perform the tasks assigned to them
by law in the most efficient manner possible is substantial and
in certain circumstances justifies placing restrictions upon
public employees’ freedom of expression. See Waters v.
Churchill, 511 U.S. 661, 675 (1994) (plurality opinion)
(O’Connor, J.) (“The government cannot restrict the speech of the
public at large just in the name of efficiency. But where the
government is employing someone for the very purpose of
effectively achieving its goals, such restrictions may well be
appropriate.”).
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In light of the competing interests of government employees
in free expression and the government in efficiency of its
operations, the Supreme Court has held that the First Amendment
precludes retaliation against a public employee based upon her
expression only if that expression satisfies two criteria.
First, the expression must relate to a matter of public concern.
See Connick, 461 U.S. at 146; Kinsey v. Salado Indep. Sch. Dist.,
950 F.2d 988, 992 (5th Cir. 1992). Second, the employee’s
interest in “commenting upon matters of public concern” must
outweigh the public employer’s interest “in promoting the
efficiency of the public services it performs through its
employees.” Pickering, 391 U.S. at 568; see also Kinsey, 950
F.2d at 992. If a public employee establishes that her
expression is protected by meeting the above two criteria, she
must still prove that her expression caused the retaliatory act
of which she complains in order to establish a violation of the
First Amendment. See Kinsey, 950 F.2d at 993.
In this case, Jones contends that she never made any public
comment about the prospect of placing the alternative education
program on the Dunbar campus and that Jones retaliated against
her based upon his perception that she spoke out negatively
regarding this matter. Assuming for the sake of argument that
Jones’s expression as perceived by Collins would have been
subject to constitutional protection (i.e., the negative comments
perceived by Collins related to a matter of public concern and
Jones’s interest in making them outweighed TISD’s interest in
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efficiently providing educational services), retaliation based on
this perception, in the absence of any actual expression by Jones
that is subject to First Amendment protection, does not
constitute a constitutional violation.
In Barkoo v. Melby, 901 F.2d 613 (7th Cir. 1990), the
Seventh Circuit addressed a factual scenario analogous to the one
at issue here: the plaintiff alleged that she was constructively
discharged from her position as a communications operator for the
Village of Skokie Police Department based upon her supervisors’
erroneous belief that she had discussed a matter relating to the
department with local media. See id. at 614-16. The court
concluded that the plaintiff could not establish a violation of
her First Amendment right to free expression because she had not
actually engaged in any protected First Amendment activity. See
id. at 619. The court observed:
To the extent Barkoo alleges that her employers
retaliated against her because they thought she was
engaged in First Amendment protected speech on an issue
of public concern, we reject the notion that this
allegation brings her claim within the requirements of
§ 1983. Every § 1983 case relating to workplace
freedom of speech, from Connick on down, discusses the
actual speech engaged in by the employee. Barkoo not
only admits, she insists that she did not provide any
information to the press. Barkoo provides no authority
for the proposition that her free speech rights are
deprived in violation of § 1983 when the speech at
issue admittedly never occurred.
Id.
In Fogarty v. Boles, 121 F.3d 886 (3d Cir. 1997), the Third
Circuit reached a similar conclusion regarding a claim that a
public school teacher was punished based upon the school
11
principal’s erroneous belief that the teacher had contacted the
press about a matter of public interest at the school. See id.
at 887. The court held that the teacher “fail[ed] to meet his
burden of proving a violation of his free speech rights [because]
he denie[d] contacting, attempting to contact, or having any
intention of contacting the press.” Id. The court noted that,
in Mt. Healthy City School District Board of Education v. Doyle,
429 U.S. 274 (1977), the Supreme Court held that a plaintiff
alleging retaliation based upon the plaintiff’s exercise of her
First Amendment rights bears the burden of showing, among other
things, “‘that his conduct was constitutionally protected.’”
Fogarty, 121 F.3d at 890 (quoting Mt. Healthy, 429 U.S. at 287).
The court reasoned that the teacher could not “sustain that
burden of proof because there was no conduct that was
constitutionally protected--indeed, there was no conduct--
period.” Id.
The instant case is analogous to Barkoo and Fogarty in all
material respects, and we find the reasoning of the Seventh and
Third Circuits persuasive. Jones contends that she never spoke
out--positively or negatively--regarding the prospect of placing
the alternative education program on the Dunbar campus. The fact
that Collins transferred her on the basis of a mistaken belief
that she spoke out in a manner that we assume for the sake of
argument would have been constitutionally protected fails to
establish a violation of Jones’s First Amendment rights. An
asserted “bad motive” on the part of Collins cannot of itself
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form the basis of a First Amendment violation. See id. at 890.
“‘[A] free speech claim depends on speech, and there was none in
this case.’” Id. (quoting Pro v. Donatucci, 81 F.3d 1283, 1292
(3d Cir. 1996) (Roth, J., dissenting)).
Jones argues, however, that her silence on the issue of the
location of TISD’s alternative education program is entitled to
First Amendment protection. In support of this contention, she
relies on Wooley v. Maynard, 430 U.S. 705 (1977), in which the
Supreme Court invalidated a New Hampshire statute requiring
residents to display the state motto of “Live Free or Die” on
their license plates. While it is true that silence in the face
of an illegitimate demand for speech is subject to First
Amendment protection, see id. at 714, this principle is
inapplicable here. Jones does not contend that Collins made a
demand--legitimate or otherwise--that she speak out in favor of
the possibility of placing the alternative education program on
the Dunbar campus. Indeed, she specifically contends that he did
not instruct her to speak on this matter.1 Therefore, Jones’s
reliance on Wooley is inapposite.
Jones’s silence in the absence of a demand for speech
likewise does not constitute a form of symbolic expression
1
Moreover, while Jones alleges that Collins transferred
her in part “because [she] refused to publicly endorse his plans
for Dunbar,” she directs us to no summary judgment evidence
supporting this allegation. The summary judgment evidence cited
by Jones indicates only that Collins may have transferred her
based upon his belief that she had spoken out negatively to
members of the community regarding the prospect of placing the
alternative education program on the Dunbar campus.
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warranting First Amendment protection. We reach this conclusion
because “[t]he First Amendment ‘was fashioned to assure
unfettered interchange of ideas for the bringing about of
political and social changes desired by the people.’” Connick,
461 U.S. at 145 (quoting Roth v. United States, 354 U.S. 476, 484
(1957)). The goal of unfettered interchange of ideas is not
furthered by “conduct without substantial communicative intent
and impact.” Smith v. Goguen, 415 U.S. 566, 586 (1974) (White,
J., concurring). Accordingly,
[f]or activities to constitute expressive conduct and
fall within the scope of the First Amendment, they must
be sufficiently imbued with elements of communication.
In deciding whether particular conduct possesses
sufficient communicative elements to bring the First
Amendment into play, we ask whether an intent to convey
a particularized message was present and whether the
likelihood was great that the message would be
understood by those who viewed it.
Cabrol v. Town of Youngsville, 106 F.3d 101, 109 (5th Cir. 1997)
(internal quotation marks and citations omitted).
Nothing in the summary judgment record indicates that Jones
intended her silence on the issue of placement of TISD’s
alternative learning program to constitute a statement of any
sort. Nor does the summary judgment record provide any
indication that anyone, Collins included, had reason to perceive
it as such. Jones has therefore not alleged that she engaged in
any expressive conduct potentially subject to First Amendment
protection. Cf. Langford v. Lane, 921 F.2d 677, 679 (6th Cir.
1991) (applying the public interest and Pickering/Connick
balancing test to an employer’s express refusal to speak with her
14
supervisor); Nicholson v. Gant, 816 F.2d 591, 599 (11th Cir.
1987) (concluding that the plaintiff had engaged in speech
warranting First Amendment protection where she “clearly
expressed her desire not to read [a] prepared statement at [a]
political rally” (emphasis added)); Sykes v. McDowell, 786 F.2d
1098, 1104 (11th Cir. 1986) (“A public employee who positively
asserts the right not to speak when ordered to support his
employer [politically] is within the protection of the first
amendment.” (emphasis added)).
In sum, the summary judgment record construed in the light
most favorable to Jones indicates that Collins’s transfer of
Jones from her position as principal of Dunbar did not violate
Jones’s constitutional rights, much less any rights clearly
established at the time of the transfer. Collins is therefore
entitled to summary judgment on the basis of qualified immunity.
V. CONCLUSION
For the foregoing reasons, we REVERSE the order of the
district court insofar as it denied Collins’s motion for summary
judgment on his defense of qualified immunity and REMAND for
entry of judgment granting this portion of the motion. Costs
shall be borne by Jones.
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