UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-40335
ROGER DUDLEY,
Plaintiff-Appellee-Cross-Appellant,
VERSUS
DAN ANGEL, Etc.; Et Al;
Defendants,
DAN ANGEL, President of Stephen F. Austin State University; BAKER
PATTILLO, Vice President for University Affairs; STEVE WESTBROOK,
Director of Student Activities; BEVERLY FARMER, Associate
Director of Student Activities,
Defendants-Appellants-Cross-Appellees.
Appeals from the United States District
Court for the Eastern District of Texas
April 25, 2000
Before POLITZ and DAVIS, Circuit Judges, and RESTANI,* Judge:
RESTANI, Judge:
This is an interlocutory appeal from an order of the
district court denying summary judgment to individual state
employees based on qualified immunity from liability under 42
U.S.C.A. § 1983 (1999). The court has jurisdiction to determine
whether the disputed facts are material to the claim of qualified
*
Judge of the United States Court of International Trade,
sitting by designation.
immunity and whether the district court otherwise applied the
proper legal standards. Gerhart v. Hayes, 201 F.3d 646, 648-49
(5th Cir. 2000); Meyer v. Austin Indep. Sch. Dist., 161 F.3d 271,
273-274 (5th Cir. 1998), cert. denied,119 S. Ct. 1806 (1999).
FACTS
Plaintiff Roger Dudley, an employee of the Stephen F. Austin
State University, sued University President Dr. Dan Angel, Vice-
President for University Affairs Dr. Baker Patillo, Director of
Student Activities Steve Westbrook, and Associate Director of
Student Activities Beverly Farmer, each in his or her individual
capacity.1 Dudley alleges his civil rights were violated when he
was dismissed from his position as Assistant Director of Student
Affairs upon assuming office as Constable of Nacogdoches County,
Texas.
The University requires that employees obtain permission for
outside employment. After several years of approvals, in 1989
the University Police Department denied Dudley permission for
outside employment in deer lease security, allegedly because of a
shooting incident some years earlier. Numerous University
1
Suit against the University, an admitted arm of the State
of Texas, was dismissed on Eleventh Amendment grounds; pendant
state law claims were dismissed without prejudice.
Dudley cross-appealed the dismissal of his claims against
the University and his state law claims. Dudley concedes,
however, that this court lacks appellate jurisdiction to hear
those claims because the district court did not enter a final
judgment. The court, therefore, need not reach these issues.
2
employees have received permission for outside part-time
employment, for as much as 120 hours per month. [See Record
Excerpts Tab 4i] There is no evidence that any employee has
received permission for full-time outside employment.2
Until 1992, Dudley was employed as a University police
officer. While off-duty he shot at the wheels of a car
containing individuals he alleged were prowlers. He was charged
with a violation of University policy. Dudley disputed the
charge and the University settled the matter by transferring him
to the Student Affairs office.
Upon his election as Constable in December, 1996, Dudley
again sought outside employment permission from the University.
He noted that the Constable position largely involved serving
civil papers, involved little or no law enforcement work, and
that the hours were flexible. [See Record Excerpts Tab 4d] The
University contacted the county personnel office and was advised
that the position of Constable was designated “full-time.” The
position pays $25,000 per year. Dudley did not cite evidence
that this is not in the range of full-time salaries for some
positions in the county. Nor does it appear disputed that the
position is actually designated “full-time,” although Dudley
alleges the position only requires 3-4 hours of work per week.
Dudley’s request for outside employment was denied. Dudley
2
Dudley’s counsel, at oral argument, admitted that no one
had been approved for outside employment at 160 hours per month.
3
alleges that in this regard he was treated differently from the
manner in which other employees were treated, and that he was
fired because he ran for Constable as a Republican.3 (Dudley
previously supported some Democrats). None of the defendants is
alleged to be a Democrat or a member of any other party. The
record reveals that defendants Angel and Farmer may have some
ties to the Republican party.
DISCUSSION
“A state official exercising discretionary authority whose
conduct deprives another of a right secured by federal
constitutional or statutory law is nonetheless shielded from
personal liability for damages under section 1983 by the doctrine
of qualified immunity, unless at the time and under the
circumstances of the challenged conduct all reasonable officials
would have realized that it was proscribed by the federal law on
which the suit is founded.” Pierce v. Smith, 117 F.3d 866, 871
(5th Cir. 1997) (citing Anderson v. Creighton, 483 U.S. 635, 637-
642 (1987)). Neither party disputes that the actions and
3
Another University employee, David Campbell, ran
unsuccessfully for County Commissioner as a Democrat. During the
campaigns of both Campbell and Dudley the University requested an
opinion of the Attorney General as to the validity of its outside
employment policy. The letter expresses the University counsel’s
belief that a Texas statute prohibited the University from firing
Campbell (a plausible interpretation, but one with which the
Attorney General disagreed) and that she believed Dudley was not
so protected. [Record Excerpts Tab 4h] The Attorney General
upheld the general applicability of the outside employment policy
to both employees. [See Atty Gen. letter, Record on Appeal, Vol.
3 at 64]
4
decisions for which Dudley is suing these defendants were
discretionary. Therefore, Dudley must overcome the defendants’
claims of qualified immunity, by first showing a violation of
clearly established federal rights. Sorenson v. Ferrie, 134 F.3d
325, 330 (5th Cir. 1998); Pierce, 117 F.3d at 872. Only if
plaintiff has satisfied this burden, need we consider the second
requirement for overcoming defendants’ claim of qualified
immunity, that is, whether the defendants’ conduct was
“objectively unreasonable.” Cronn v. Buffington, 150 F.3d 538,
541 (5th Cir. 1998); Texas ex rel. Bd. of Regents of Univ. of
Tex. Sys. v. Walker, 142 F.3d 813, 818 (5th Cir. 1998), cert.
denied, 119 S.Ct. 865 (1999).
The first step of the qualified immunity analysis is
subdivided into three questions: (1) whether a constitutional
violation is alleged; (2) whether the law regarding the alleged
violation was clearly established at the time of the alleged
violation; and (3) whether the record shows that the violation
occurred. Kerr v. Lyford, 171 F.3d 330, 339 (5th Cir. 1999)
(citing Rich v. Dollar, 841 F.2d 1558, 1563 (11th Cir. 1988)).
The district court accepted that plaintiff was alleging
violation of the right to affiliate with the party of one’s
choice and that such rights are clearly established. The court
focused on the reasonableness of the actions of the University
officials for both determining whether the record could support a
finding that Dudley’s rights were violated, and for determining
5
whether the officials’ conduct was objectively unreasonable. The
court found, first, that the officials were incorrect in finding
the position to be full-time in the face of Dudley’s description
of the position and, second, that they acted unreasonably in not
looking behind the “full-time” designation. The court further
found that the letter to the Attorney General requesting an
opinion of the University’s outside employment policy
demonstrated: (1) that the officials’ proffered reasons to
terminate Dudley were pretextual; (2) that the officials wanted
to treat the Democratic candidate, Campbell, differently from
Dudley, the Republican candidate; and (3) that the University
officials might harbor resentments toward party switchers. [See
District Ct. Memorandum Order and Opinion, Record Excerpts Tab 3,
at 9-10 & n. 2.]
The district court erred. Dudley cannot satisfy the first
part of the two-part test for overcoming qualified immunity. The
Supreme Court has consistently held that “the First Amendment
forbids government officials to discharge or threaten to
discharge public employees solely for not being supporters of the
political party in power . . .” Brady v. Fort Bend County, 145
F.3d 691, 702 (5th Cir. 1998) (quoting Rutan v. Republican Party
of Ill., 497 U.S. 62, 64 (1990)), cert. denied, 525 U.S. 1105
(1999). If Dudley’s claim rests on political affiliation
discrimination, as the district court believed, he must at least
put forth evidence from which a trier of fact could conclude that
6
these defendants discriminated against him because he ran as a
Republican.4 See Crawford-El v. Britton, 523 U.S. 574, 588
(1998) (“an essential element of some constitutional claims is a
charge that the defendant’s conduct was improperly motivated”).
In a First Amendment violation case, such as this, where wrongful
motive is an element of the violation, the district court must
not let the objectively reasonable test of the second step
overcome the requirements of the first step. See id. at 588
(plaintiff bears “initial burden of proving a constitutional
violation”). Dudley did not make out a case of political
affiliation discrimination which could survive summary judgment
because no evidence of a constitutionally infirm motive was
presented.5 The district court’s attempt to fill in the gap with
a theory of animus toward party switchers finds no basis in this
record.
Disposition of the political affiliation claim leaves only
Dudley’s claim that he was denied the equal protection of the
law, in that he was treated differently from other State
4
The letter to the Attorney General on which the district
court relied is of no help to Dudley. Distinctions were drawn
among Campbell and Dudley, who were seeking different positions,
for legal reasons which were not irrational. There is no
evidence that the distinctions were drawn because Campbell was a
Democrat and Dudley a Republican.
5
Whether the University wished Dudley to leave its
employment because of his record as its employee might present a
disputed fact, but it is not material to a claim of a
constitutionally infirm motive.
7
University employees. “The Equal Protection Clause ‘is
essentially a direction that all persons similarly situated
should be treated alike.’” Brennan v. Stewart, 834 F.2d 1248,
1257 (5th Cir. 1988) (quoting City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432, 439 (1985)). Dudley does not allege he is a
member of a suspect class. Therefore, under equal protection
analysis, rational basis scrutiny applies. See Johnson v.
Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997).
First, the record reveals that no other University employee
received permission to assume an outside position designated
full-time by the outside employer. Thus, there is no similarly
situated person who was treated differently. Compare Gosney v.
Sonora Indep. Sch. Dist., 603 F.2d 522, 527 (5th Cir. 1979)
(holding school district violated administrator’s fourteenth
amendment right to equal protection by denying him employment
because others, similarly situated, were not denied employment).
Second, the University’s treatment of Dudley had a rational
basis. His outside employment was designated to be full-time.
It is rational to require University employees to be limited to
one full-time job.
Further, assuming that the second step of qualified immunity
analysis may be reached, it cannot be said that defendants’
actions were objectively unreasonable based on the undisputed
facts. To require the University to look behind the county’s
classification system or to accept Dudley’s description of the
8
position in the face of the county’s declaration, as the district
court did, is to place on University officials a burden they need
not meet in order to be qualifiedly immune from suit.6 The
officials need not be correct in their assessments; they need
only be reasonable in making them.
Public officials must be free to make unpleasant or
difficult discretionary decisions free from the threat of
protracted litigation. Insubstantial litigation must be quickly
terminated. Harlow v. Fitzgerald, 457 U.S. 800, 814 (1982)
(citations omitted). Requiring a showing of a clearly
established violation of law and objectively unreasonable
decision-making serves this function. See id. at 818 (“Reliance
on the objective reasonableness of an official’s conduct, as
measured by reference to clearly established law, should avoid
excessive disruption of government and permit the resolution of
many unsubstantiated claims on summary judgment”) (footnote
omitted). Dudley has not met this burden.
We conclude that the district court erred in denying
defendants’ summary judgment based on qualified immunity. The
decision below is reversed and we remand this matter to the
district court for disposition of the action.
6
Dudley’s description is difficult to square with both
campaign information about the increased responsibilities of the
position and the salary provided.
9