IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 99-20005
_______________
SUSAN L. GERHART,
Plaintiff-Appellee
VERSUS
EDWARD J. HAYES, ET AL,
Defendants,
EDWARD J. HAYES, GLENN GOERKE, JAMES T. HALE,
and
WILLIAM A. STAPLES,
Defendants-Appellants.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
February 4, 2000
Before HIGGINBOTHAM and SMITH, Susan Gerhart sued Edward Hayes, Glenn
Circuit Judges, and FALLON, District Goerke, James Hale, and William Staples fol-
Judge.* lowing her termination from the University of
Houston’s Research Institute for Computing
JERRY E. SMITH, Circuit Judge: and Information Systems (“RICIS”). The de-
fendants appeal the denial of their motion for
summary judgment on the basis of qualified
*
District Judge of the Eastern District of immunity. Concluding that Gerhart did not
Louisiana, sitting by designation.
allege sufficient facts to create a genuine issue as to why she should be retained. Gerhart did
of material fact as to her claim of retaliatory not dispute that the funding for RICIS had
discharge in violation of the First Amendment declined precipitously during her tenure; she
or of violation of procedural due process, we admitted that she had failed to secure any new
reverse and render judgment in favor of funding for RICIS in the two years she was the
defendants. director, and she subsequently admitted that it
was appropriate for Hayes to link his
I. assessment of her job performance to her
RICIS was founded in 1986 through a success in diversifying the funding sources for
cooperative agreement between the University RICIS.
of Houston and the Lyndon B. Johnson Space
Center jointly to manage an integrated Gerhart appealed her dismissal
program of research in advanced data administratively within the university, which
processing technology for the space program. assembled a grievance hearing panel of one
Through the agreement, a portion of the faculty member and two administrators, all of
research support funding provided to RICIS whom were chosen by a human resources
by the Space Center was retained by the director without any influence by defendants.
university’s Finance and Administration After hearing testimony and receiving
Department to cover indirect costs associated documents from Gerhart, the panel upheld the
with the support of RICIS. termination. President Staples received and
accepted the panel’s recommendation.
In April 1993, Gerhart was hired as the di-
rector of RICIS to diversify and increase the Gerhart alleged, inter alia, claims pursuant
sources of RICIS funding. Hale was vice- to 42 U.S.C. § 1983, asserting that defendants
president for administration and finance, and had violated her First Amendment right to free
Hayes was senior vice-president and provost. speech by terminating her in retaliation for her
Gerhart questioned, as excessive, the amount complaints about RICIS’s allocation of
of discretionary funding the university funding and had violated her procedural due
retained. Specifically, she complained to Hale process rights guaranteed by the Fifth and
and Hayes that the finance and administration Fourteenth Amendments. The defendants
funds should be reallocated for use in RICIS’s moved for summary judgment on the basis of
research program. She also voiced these con- qualified immunity.1 The district court denied
cerns to other academic colleagues within the
university. Her complaints ultimately had little 1
impact, however; none of the defendants Gerhart argues, for the first time on appeal,
adopted her position or changed the allocation that the defendants’ assertion of qualified immunity
within one month of the date of trial is abusive and,
of funds.
as a result, that we should summarily dismiss the
appeal. She points to the fact that at the time the
In May 1995, Hayes notified Gerhart that summary judgment motion was filed, the
her employment was being terminated, citing scheduling order in effect had closed discovery and
a lack of progress to broaden the funding base had closed the filing for dispositive motions.
for RICIS. In the dismissal letter, Hayes in-
vited her to present any argument or evidence The defendants correctly point out, however,
(continued...)
2
the motion, concluding that material issues of tion for summary judgment on the ground that
fact remained as to both claims. ‘genuine issues of material fact remain,’ the
court has made two distinct legal conclusions.
II. First, the court has concluded that the issues of
Gerhart argues that we are without fact in question are genuine.” Colston,
jurisdiction to hear this appeal because the 146 F.3d at 284 (emphasis added).
defendants seek a review of factual, not legal,
issues. She points to Colston v. Barnhart, 146 More significantly, the Colston court noted
F.3d 282 (5th Cir.) (on petition for rehearing the district court’s second legal conclusion
en banc), cert. denied, 525 U.S. 1054 (1998), “that the issues of fact are material, i.e.,
as supporting the proposition that a defendant resolution of the issues might affect the
may not appeal an order denying a qualified outcome of the suit under governing law.” Id.
immunity defense when review is sought on a (emphasis added). While the first of these
finding that the summary judgment record sets determinations was not reviewable, Colston
forth a genuine issue for trial.2 and Behrens made “clear that an appellate
court is free to review a district court’s
Gerhart selectively quotes from Colston determination that the issues of fact in
and overlooks its more important and relevant question are material.” Id.
discussion. In interpreting Behrens v. Pelle-
tier, 516 U.S. 299 (1996), the Colston court When a district court does not identify the
noted that “when a district court denies a mo- evidence that creates the “genuine” issue of
fact, we “may have to undertake a
cumbersome review of the record to determine
what facts the district court, in the light most
(...continued)
favorable to the nonmoving party, likely
that their motion was timely filed on the deadline
for dispositive motions. Because Gerhart does not assumed.” Behrens, 516 U.S. at 313. Here,
set forth any facts that would suggest that the de- on both claims the district court stated only
fendants acted with any dilatory or improper mo- summarily that there remained genuine issues
tive in filing when they did, we decline the request of material fact that precluded summary
to dismiss. judgment. Consequently, we may review the
underlying facts to make our own
2
Gerhart also quotes Lemoine v. New Horizons determination on both genuineness and
Ranch & Ctr., Inc., 174 F.3d 629, 633 (5th Cir. materiality issues.
1999), in which we stated, in a qualified immunity
case, that “[w]e have appellate jurisdiction to re- Moreover, we have jurisdiction to consider
view the district court’s decision denying summary
whether the district court applied the correct
judgment only to the extent it turns on an issue of
legal standard on summary judgment.3 Here,
law. Or said differently, our appellate jurisdiction
does not allow us to review that district court’s
factual findings.” Gerhart does not read enough of
3
Lemoine, however, for that court actually held that, See Hare v. City of Corinth, 74 F.3d 633, 638
consistent with Colston, we defer only to a district (5th Cir. 1996) (en banc) (holding that the appeal
court’s articulation of the genuinely disputed facts, did not present a fact-intensive inquiry, but “[r]ath-
not to a determination that those facts are material. er, it presents a legal issue antecedent to the
See id. at 634. (continued...)
3
that review involves a question of what are the interest in her employment,4 it was incumbent
necessary elements of each of Gerhart’s claims on the court to identify which facts were at
and whether there are genuine issues of issue and were material to her claim of a due
material fact on each of those elements. These process violation. Because it failed to do so,
are questions of law that we review de novo. we must undertake an independent review of
Before reaching the narrower issue of qualified the record to determine which facts, if any,
immunity, we must consider whether the plain- were genuinely disputed and were material to
tiff has alleged the violation of a clearly the claim.
established constitutional right. Siegert v.
Gilley, 500 U.S. 226, 232 (1991). The constitutional guarantee of due process
requires notice and an opportunity to respond.
III. See generally Cleveland Bd. of Educ. v. Lou-
Defendants argue that the district court in- dermill, 470 U.S. 532 (1985). In our review
correctly rejected their qualified immunity de- of the record, we find no facts that suggest
fense on Gerhart’s procedural due process that Gerhart did not receive bot h. First, it is
claim. They assert that she has not set forth undisputed that she received the termination
sufficient facts to establish a constitutional letter from Hayes. It provided her with the
claim of a due process violation. Gerhart, on reason for her termination,SSi.e., her complete
the other hand, alleges that the defendants vio- failure to achieve the main job objective of
lated her right to procedural due process be- increasing funding for RICISSSand it informed
cause she was not provided sufficient notice of her of the procedure for appealing the decision
the reason for her termination and was not af- to Hayes.
forded the opportunity to have an attorney
present at the administrative review panel. Furthermore, when she received the notice
of intent to terminate her employment, Gerhart
The district court concluded that there was provided extensive documentation in an
a material issue of fact as to whether the de- attempt to rebut any criticism of her
fendants had provided adequate notice of ter- performance. Hayes read her response. It is
mination and an opportunity for Gerhart to be odd, then, that Gerhart still maintains that
heard. The court did not identify what those although she received the letter, on its face
issues of fact were, however, but instead fo- that letter gave no notice of any charges
cused almost exclusively on justifying its con- against her that would support her termination.
clusion that Gerhart held a constitutionally The undisputed facts simply do not support
protected property interest in continued her assertion, and, as a result, no issues of fact
employment. remain as to whether she received notice.
Regardless of the nature of Gerhart’s In addition, Gerhart argues that she did not
have an opportunity to be heard, because she
was not allowed an attorney at her
(...continued)
determination of whether there are genuine issues
4
of material fact. Our review of the legal issues in For purposes of this appeal, the defendants
this appeal goes to the legal question of the correct have conceded that Gerhart has a constitutionally
legal standard.”). protected liberty interest in continued employment.
4
administrative hearing.5 She asserts that under public employer’s interest in promoting
Texas law, a public employee is entitled to be efficiency;” and (3) “the employee’s speech
represented by an attorney where termination must have motivated the decision to discharge
of employment is at issue. What she fails to the employee.” Fowler v. Smith, 68 F.3d 124,
establish, however, is that constitutional due 126 (5th Cir. 1995).
process requires an attorney present at her
post-termination administrative review The district court concluded that there was
hearing. The fundamental issue in due process “a fact question concerning whether Gerhart’s
law is not whether state officials violated state expression of concern regarding allocation of
law, but whether they provided the plaintiff RICIS funds constitutes protected speech and
with the constitutional minima.6 if so, whether her utterance of this speech was
the real reason she was terminated.” But the
Gerhart has not set forth any facts court is mistaken. The question whether Ger-
establishing that the defendants violated the hart’s expression is constitutionally protected
constitutional due process minima of notice speech is a legal issue, not a factual one, and
and an opportunity to be heard. See there is no dispute as to the content of that
Loudermill. Therefore, the district court erred speech. Consequently, whether Gerhart’s
in denying summary judgment on this claim. speech is a matter of public concern is a
question that is appropriate for summary
IV. judgment.
The defendants appeal the denial of their In Wallace v. Texas Tech Univ., 80 F.3d
summary judgment motion on Gerhart’s First 1042, 1051 (5th Cir. 1996), we held that
Amendment claim. They contend that she has “speech made in the role as employee is of
not set forth sufficient facts to establish the re- public concern only in limited cases: those
quired elements for determining whether a involving the report of corruption or
public employee has been discharged in wrongdoing to higher authorities.” (Emphasis
retaliation for constitutionally protected added.) Gerhart relies on Barnes v.
speech, to-wit, that (1) the employee’s speech McDowell, 848 F.2d 725,734 (6th Cir. 1988),
must be “a matter of public concern;” (2) “the for the proposition that “it is possible to view
public employee’s interest in commenting on allegations that public monies are being spent
matters of public concern must outweigh the unwisely and that government program is
being run inefficiently, as implying that public
agency or official is corrupt.”
5
On appeal, Gerhart does not renew her
argument that the administrative review panel’s But even Barnes does not support Ger-
members were biased. hart’s position, for that court opined that
6 “when a defendant has moved for summary
See FM Properties v. City of Austin, 93 F.3d
167, 174 (5th Cir. 1996) (“Converting alleged vio-
judgment, a plaintiff must present concrete
lations of state law into federal due process claims evidence to support the allegation [of
improperly bootstraps state law into the retaliation] in order to survive the motion.”
Constitution.”) (internal punctuation marks Id. Gerhart has not done this: She sets forth
omitted) (quoting Stern v. Tarrant County Hosp. no facts or allegations that she spoke out as a
Dist., 778 F.2d 1052, 1056 (5th Cir. 1985) citizen, rather than as an employee. Likewise,
(en banc)).
5
she has presented no evidence or allegations
that her speech involved the reporting of any
corruption or wrongdoing by the defendants.
The only logical inference from the facts
presented is that Gerhart was speaking in her
role as an employee, and, consequently, her
expression was not a matter of public concern
and was not constitutionally protected speech.
Thus, the district court should have granted
summary judgment.7
The order denying summary judgment is
REVERSED, and a judgment of dismissal is
RENDERED in favor of defendants.
7
See Wallace, 80 F.3d at 1051 (upholding
summary judgment because plaintiff “failed to
allege facts, much less present evidence, sufficient
to constitute speech on a matter of public
concern”). Accord Barnes, 848 F.2d at 736 (not-
ing that plaintiff “presented no evidence linking any
of [the employee’s expression] to corruption in the
Bureau or in the Program. Consequently, instead
of having addressed a matter of public concern,
[plaintiff’s] complaints appear to be nothing more
than examples of the quintessential employee beef:
management has acted incompetently.”).
6