UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-50106
BECKY STERNADEL,
Plaintiff-Appellee,
VERSUS
WAYNE SCOTT, Etc.; Et Al.,
Defendants,
WAYNE SCOTT, Executive Director, Texas Department of Criminal
Justice; PAT IVEY; RACHEL GOMEZ; WILLIAM MUSSER; JOE FLORES; CARL
JEFFRIES,
Defendants-Appellants.
Appeal from the United States District Court
For the Western District of Texas, Austin
(A-99-CV-314-SS)
May 7, 2001
Before HIGGINBOTHAM, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
This appeal arises from a suit brought by Becky Sternadel
pursuant to 42 U.S.C. § 1983 for a violation of the First
Amendment. Defendant Wayne Scott filed a motion for summary
*
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opinion should not be published and is not precedent except under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.
1
judgment on the basis of Eleventh Amendment immunity, and
defendants Pat Ivey, Rachel Gomez, William Musser, Joe Flores, and
Carl Jeffries filed motions for summary judgment on the basis of
qualified immunity. The district court denied all of these
motions, and this appeal ensued. For the following reasons, we
affirm the judgment of the district court based on Eleventh
Amendment immunity, but we dismiss the portion of the appeal based
on qualified immunity.
I. Factual and Procedural History
Sternadel was employed as a District Parole Officer for the
Texas Department of Criminal Justice, Paroles Division (“TDCJ”) in
the Wichita Falls District Parole Office. In 1996, she and other
parole officers met with a reporter from the Wall Street Journal to
discuss the overtime policy and work ethic of the Parole Division.
Sternadel was quoted in the article, which revealed that she had
received approximately $3000 for unpaid overtime as a result of a
settlement with the Labor Department. She later appeared on
national television to discuss the article, as well as on local
television in an interview along with Ivey, Regional Director of
TDCJ.
Five days later, on July 17, 1996, Sternadel was charged with
improper association with a client because a parolee had come
uninvited to her home and was denied access. Subsequently, she was
found not guilty of the violation.
On August 15, 1996, Sternadel attended a public meeting
2
regarding the renewal of a contract between TDCJ and the Salvation
Army for a halfway house. Sternadel spoke in opposition to the
contract, and the presiding TDCJ Public Information Officer
attempted to end the meeting without a vote. After public outcry,
a vote was taken, and the contract was not renewed. A notation was
placed in Sternadel’s file that she had spoken out against the
halfway house. In January of 1997, Sternadel complained to Ivey
that her supervisors were creating a hostile work environment, and
Sternadel alleged that Ivey told her that if this were the old
days, she would be gone for what she had done.
On April 1, 1997, Sternadel appeared at the Wichita County
Courthouse for a parole hearing on parolee Michael Wilson. At the
hearing, Sternadel told Joyce Bond, mother of Michael Wilson, that
Wilson’s parol would most likely be revoked. Bond and two other
Wilson relatives who had also been present at the parol hearing
complained to Gomez, Sternadel’s supervisor, that Sternadel had
behaved unprofessionally during the parole hearing. On April 23,
Gomez went to Bond’s house to obtain statements from the family
members. That day Sternadel was charged with failure to obey a
proper order from an authority, use of profane or abusive language
or racial slurs, misconduct, and cohabitation with an inmate or an
inmate’s family, which stemmed from an allegation that Sternadel
hugged an inmate. On April 25, Gomez interviewed the inmate who
was allegedly hugged as well as another witness, both of whom
denied that Sternadel had violated any rules, but no written
3
statements were taken.
A hearing on these violations was held on April 29, 1997, by
Flores, Assistant Regional Director of TDCJ. Bond retracted her
statements, and Sternadel was found not guilty of two of the
violations. However, on May 5, Flores found her guilty of hugging
an inmate and recommended dismissal. The following day, Bond
contacted Sternadel at her home in order to retract her statement.
Sternadel went to Bond’s home on May 7, and typed a new statement
for Bond as well as for her daughter. Both new statements
indicated that Gomez had pressured the witnesses into saying that
Sternadel had hugged an inmate. Later, the third of the witnesses
also stated that Gomez had told her what to put into her statement.
On May 30, 1997, at a mediation, Sternadel presented evidence
that refuted Flores’s conclusion that she had hugged an inmate. A
new hearing was held, and no discipline was imposed. However,
following this hearing, Sternadel was repeatedly charged with
violating other rules; most importantly, she was charged with
tampering with a witness, based on an allegation that Sternadel
promised to lift the warrant on Bond’s son if Bond would retract
her statement against Sternadel. Musser, an Internal Affairs
investigator for TDCJ, investigated the charge and prepared a
report; at a September hearing, the presiding officer found her
guilty and recommended dismissal. Sternadel was later acquitted of
criminal charges stemming from the same conduct. She filed a
grievance, which Jeffries, acting Director of the Parole Division,
4
denied.
Sternadel brought suit under 42 U.S.C. § 1983 against
defendants Ivey, Gomez, Musser, Flores, and Jeffries, inter alios,
in their individual capacities and against Scott in his official
capacity. At issue on this appeal are the following motions, all
of which were denied: Scott’s motion to dismiss based on Eleventh
Amendment immunity, and the remaining defendants’ motions for
summary judgment based on qualified immunity.
II. Standard of Review
We review the grant of summary judgment de novo, applying the
same standards as the district court. Piazza v. Maine, 217 F.3d
239, 244 (5th Cir. 2000). We view facts and inferences in the light
most favorable to the non-movant. Hall v. Gillman, Inc., 81 F.3d
35, 36-37 (5th Cir. 1996). Summary judgment is granted if there is
no genuine issue of material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 327 (1986).
III. Eleventh Amendment Immunity
Defendant Scott’s motion for dismissal is based on a claim of
Eleventh Amendment immunity. Sternadel named Scott as a defendant,
seeking the prospective equitable relief of reinstatement. Claims
for prospective relief are not barred by sovereign immunity when it
is alleged that a state official acted in violation of federal law.
Warnock v. Pecos County, Texas, 88 F.3d 341, 343 (5th Cir. 1996)
5
(citing Ex parte Young, 209 U.S. 123, 155-56 (1908); Edelman v.
Jordan, 415 U.S. 651, 664 (1974)); see also Brennan v. Stewart, 834
F.2d 1248, 1253 (5th Cir. 1988) (“The Eleventh Amendment and the
doctrine of Ex parte Young together create a relatively simple rule
of state immunity. Basically, prospective injunctive or
declaratory relief against a state is permitted--whatever its
financial side-effects--but retrospective relief in the form of a
money judgment in compensation for past wrongs--no matter how
small--is barred.”). Scott argues on appeal that no wrongful act
can be attributed to him because all he did was respond to
Sternadel that her complaint was being forwarded to Jeffries.
However, because of the very nature of the relief sought–-
reinstatement to her job as a parole officer in the TDCJ, which is
under Scott’s direction as Executive Director of TDCJ–-Scott is the
properly named party and is subject to the Young exception to
sovereign immunity. Am. Bank & Trust Co. of Opelousas v. Dent, 982
F.2d 917, 921 (5th Cir. 1993).
III. Qualified Immunity
This court normally does not have appellate jurisdiction to
review the denial of a motion for summary judgment, except when it
is premised on a claim of qualified immunity. Lemoine v. New
Horizons Ranch & Ctr., 174 F.3d 629, 633 (5th Cir. 1999) (citing
Mitchell v. Forsyth, 472 U.S. 511 (1985)). However, jurisdiction
in those instances is limited to a review of the district court’s
decision only to the extent it turns on an issue of law, and the
6
court is precluded from conducting a review of the district court’s
findings of facts. Id. When a district court denies summary
judgment because of genuine issues of material fact, we do not have
jurisdiction over the conclusion that the fact issues are genuine,
but we do have jurisdiction over the conclusion that the fact
issues are material. Id. at 633-34. Thus, “this court ‘cannot
review whether the evidence could support a finding that particular
conduct occurred, but can take, as a given, the facts that the
district court assumed when it denied summary judgment and
determine whether those facts state a claim under clearly
established law.’” Meyer v. Austin I.S.D., 161 F.3d 271, 274 (5th
Cir. 1998) (quoting Southard v. Texas Bd. of Criminal Justice, 114
F.3d 539, 548 (5th Cir. 1997)).
“The doctrine of qualified immunity serves to shield a
government official from civil liability for damages based upon the
performance of discretionary functions if the official’s acts were
objectively reasonable in light of then clearly established law.”
Thompson v. Upshur County, TX, Nos. 99-41023 & 99-41024, 2001 WL
258032, *4 (5th Cir. Mar. 15, 2001). The analysis is two-fold:
First, the court must determine whether the plaintiff has alleged
the violation of a clearly established federal right, and second,
the court must assess whether the defendant’s conduct was
objectively reasonable in light of clearly established law. Id. at
*5; see also Mangieri v. Clifton, 29 F.3d 1012, 1016 (5th Cir.
1994). A plaintiff must satisfy the following test in order to
7
prove a First Amendment retaliation claim, as Sternadel alleges:
(1) the speech was on a matter of public concern; (2) the speech
was a substantial or motivating factor for the termination; but the
defendant may escape liability by showing that he would have
terminated the plaintiff in the absence of the protected speech.
Gerhart v. Hayes, 217 F.3d 320, 321 (5th Cir. 2000) (citing Mt.
Healthy Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977)).
On appeal, the defendants argue both that Sternadel has failed
to show the violation of a clearly established right and that their
actions were objectively reasonable. We, however, agree with the
district court that genuine issues of material fact exist as to
whether the defendants’ motivations in upholding or participating
in Sternadel’s termination were based on unlawful and
unconstitutional retaliation or on other lawful bases. For
instance, defendant Jeffries claims that he fired Sternadel on the
basis of a good faith reliance on an internal investigative report;
however, Sternadel alleges that Jeffries ignored exculpatory
evidence. Defendant Ivey argues that he was not personally
involved in the investigation of Sternadel; however, Sternadel put
forth evidence from an assistant director that Ivey was both
personally and actively involved in the investigation. But
see Gerhart, 217 F.3d at 322 (finding that summary judgment was
appropriate where defendants set forth undisputed evidence that
they would have fired plaintiff regardless of protected speech
activity); Mangieri, 29 F.3d at 1016 (finding that summary judgment
8
was appropriate where there was general agreement concerning the
factual events).
A denial of summary judgment was appropriate because there are
underlying facts in dispute that are material to whether the
defendants acted with objective reasonableness. Mangieri, 29 F.3d
at 1016. Because of this dispute, the defendants’ defense of
qualified immunity cannot prevail as a matter of law, and this
court is without jurisdiction to consider the interlocutory appeal.
Lampkin v. City of Nacogdoches, 7 F.3d 430, 436 (5th Cir. 1993).
IV. Conclusion
Therefore, we AFFIRM the judgment of the district court,
denying the motion to dismiss on the basis of Eleventh Amendment
immunity. We DISMISS the interlocutory appeal based on qualified
immunity.
9