IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20859
PAULINO ZAVALA,
Plaintiff-Appellant,
versus
CITY OF HOUSTON, TEXAS,
Defendant-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas.
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June 29, 2001
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Paulino “Paul” Zavala appeals the district
court’s grant of summary judgment dismissing his claims under 42
U.S.C. § 1983, Title VII, 42 U.S.C. § 1981, and the Texas
Whistleblower Act, against Defendant-Appellee the City of Houston
(“the City”). Zavala claims that the City, through the Internal
Affairs Division (“IAD”) of the Houston Police Department (“HPD”),
retaliated against him for his active opposition to its purported
racial discrimination and other illegal conduct by attempting to
*
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this opinion should not be published and is not precedent except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. Rule 47.5.4.
entrap him into criminal activity, falsely arresting and
incarcerating him, and attempting to subject him to criminal
prosecution. The district court granted the City’s motion for
summary judgment on the ground that a non-disclosure agreement
between the parties —— signed as part of an agreement settling
charges stemming from an administrative disciplinary investigation
of Zavala —— proscribes disclosing the evidence Zavala must adduce
to support his claims. Convinced that the district court
erroneously interpreted the scope of the non-disclosure provision,
thereby overextending its ambit, we reverse that court’s grant of
summary judgment and remand for further consistent proceedings on
an expedited basis.
I. Facts and Proceedings
Zavala has been a member of the Houston Police Department for
fifteen years, notably serving as an undercover officer in the
Narcotics Division from 1989 until September of 1996. In January
of 1996, IAD began an investigation of Angela Puente, an Hispanic
clerk in the HPD’s Narcotics Division and a personal friend of
Zavala’s. Believing the seeds of this investigation to lie not in
perceived wrongdoing by Puente but rather in a rumored romantic
relationship between Puente and the husband of an IAD officer ——
and perhaps in racial bias as well —— Zavala assisted Puente by,
inter alia, helping her obtain legal counsel. The IAD
investigation of Puente ultimately uncovered no wrongdoing on her
2
part. Zavala then attempted to bring to the attention of the HPD
hierarchy what he believed to have been an improper investigation
of Puente. To this end, he requested a meeting with the Chief of
HPD, which request was denied; instead the Chief directed Zavala to
submit his complaint in writing through the proper chain of
command. In complying with that directive, Zavala accused IAD of
racial discrimination, coercion and intimidation of a witness
during an official investigation, and dissemination of confidential
documents to persons outside of IAD.
Shortly after Zavala submitted his written complaint as
directed, the IAD’s Proactive Division undertook a “sting”
operation (“the Proactive Investigation”) against him. The City
claims that it undertook this investigation after Chris Orzabal,
one of Zavala’s confidential informants, alleged that Zavala had
offered to credit him with having completed the terms of his plea
agreement in return for paying Zavala $10,000. Based on evidence
gathered in this Proactive Investigation and the ensuing report,
filed under case number 96PA052, Zavala was arrested for money
laundering and placed on administrative leave. The grand jury,
however, refused to indict Zavala on these charges; in fact, the
foreman advised the District Attorney’s office that the grand jury
was convinced that HPD had attempted to “frame” Zavala.
HPD nevertheless continued Zavala’s administrative leave for
an additional eight months after the grand jury returned a “no
bill,” during which time IAD’s Reactive Division instituted a new
3
investigation of Zavala’s conduct (“the Reactive Investigation”).
The Reactive Investigation —— conducted under Chapter 143 of the
Texas Local Government Code and assigned case number 96-1832 ——
ultimately determined that there was not sufficient evidence to
prove that Zavala had engaged in money laundering but concluded
that he had violated HPD policy in his handling of Orzabal by,
inter alia, maintaining a social relationship with him.
In return for HPD’s continuing his employment, Zavala agreed
to a proposed settlement under which he would accept a transfer out
of the Narcotics Division and a 20 calender day suspension, and
would waive any right to appeal the terms of the settlement. With
the advice of counsel, he signed a “Confidential Last Chance
Agreement” (“the Agreement”) which included a non-disclosure
provision stipulating, in relevant part, that he would not “publish
or disclose any information about this procedure, investigation of
case no. 96-1832 [the Reactive Investigation] and settlement.”
Zavala served his 20-day suspension and returned to work.
Shortly thereafter, he filed suit against the City in federal
district court, asserting claims under 42 U.S.C. § 1983, Title VII,
42 U.S.C. § 1981, and the Texas Whistleblower Act.1 In essence,
Zavala claims that the City subjected him to false arrest,
imprisonment and prosecution in retaliation for his aid to Puente
1
Pursuant to 28 U.S.C. 636(c), the parties consented to trial
before a Magistrate Judge. Therefore, the decisions of the
magistrate judge are considered to be those of the district court.
4
and his allegations of IAD’s wrongdoings during that investigation.
The district court granted summary judgment for the City,
concluding that Zavala had waived his right to bring claims against
the City in any way relating to IAD’s investigations. On appeal
(“Zavala I”), we reversed that decision, holding that Zavala had
waived only his right to appeal the City’s administrative
disciplinary suspension and had not waived his right to assert his
federal and state civil rights claims against the City. In
Zavala I, we expressly declined to address the scope of the non-
disclosure provision of the Agreement and remanded the case to the
district court.
On remand, the district court again granted summary judgment
for the City (“Zavala II”), concluding that the non-disclosure
provision of the Agreement prohibits Zavala from introducing any
evidence relating to IAD’s investigation of his conduct, as a
result of which he would not be able to present sufficient evidence
to support his claims. Zavala timely appealed.
II. Analysis
A. Standard of Review
As this case is on appeal from a dismissal on summary
judgment, we review it de novo, applying the same standard as the
district court.2 A motion for summary judgment is properly granted
2
Morris v. Covan Worldwide Moving, Inc., 144 F.3d 377, 380
(5th Cir. 1998).
5
only if there is no genuine issue as to any material fact.3 An
issue is material if its resolution could affect the outcome of the
action.4 In deciding whether a fact issue has been created, the
court must view the facts and the inferences to be drawn therefrom
in the light most favorable to the nonmoving party.5
The standard for summary judgment mirrors that for judgment as
a matter of law.6 Thus, we must review all of the evidence in the
record, but make no credibility determinations or weigh any
evidence.7 In reviewing all the evidence, we must disregard all
evidence favorable to the moving party that the jury is not
required to believe, and give credence to the evidence favoring the
nonmoving party as well as to the evidence supporting the moving
party that is uncontradicted and unimpeached.8
We review questions of law, including the interpretation of an
unambiguous contract, de novo.9
3
Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
4
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
5
Olabisiomotosho v. City of Houston, 185 F.3d 521, 525 (5th
Cir. 1999).
6
Celotex, 477 U.S. at 323.
7
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000).
8
Id. at 150.
9
Stinnett v. Colorado Interstate Gas Co., 227 F.3d 247, 254
(5th Cir. 2000).
6
B. Scope of the Non-disclosure Provision
The only issue before us today is whether the non-disclosure
provision of the Agreement prevents Zavala from disclosing any
information relating to both of IAD’s investigations of his conduct
—— the Proactive Investigation and the Reactive Investigation —— or
only that gathered in the Reactive Investigation, case number 96-
1832. We repeat for emphasis that the non-disclosure provision
states: “Neither I nor my representative will publish or disclose
any information about this procedure, investigation of case no. 96-
1832 or settlement.”
The district court concluded that this provision prohibited
Zavala from disclosing information in any way relating to either of
IAD’s investigations of his conduct. More specifically, the court
held that the non-disclosure provision included within its scope
both the Reactive Investigation (case number 96-1832) and the
earlier, Proactive Investigation (case number 96PA052), expressly
stating that Zavala’s “attempted delineation [between the two
investigations] constitutes a distinction without a difference.”
We disagree.
To interpret a contractual provision, we start by determining
whether the provision is ambiguous. “If a written instrument is so
worded that it can be given a certain or definite legal meaning or
interpretation, then it is not ambiguous and it can be construed as
7
a matter of law.”10 “If its meaning is uncertain and doubtful or it
is reasonably susceptible to more than one meaning, taking into
consideration circumstances present when the particular writing was
executed,” it is ambiguous.11 “In construing a written contract,
our primary concern is to ascertain the true intentions of the
parties as expressed in the written instrument.”12 Only if the
contract is ambiguous may we look to extraneous evidence to
ascertain the intent of the parties.13
We find the Agreement’s non-disclosure provision to be clear
and unambiguous. It pellucidly states Zavala’s consent not to
disclose any information regarding (1) “this procedure,” (2) “the
investigation of case no. 96-1832,” and (3) the settlement
agreement between Zavala and HPD. Each of these phrases is
facially unambiguous; the meaning of each is easily ascertainable
by considering its text and the facts as they existed at the time
the parties agreed to the provision.
The term “procedure,” although not defined anywhere in the
Agreement, indisputably refers to the administrative disciplinary
procedure undertaken against Zavala on the basis of the Reactive
10
Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925
S.W.2d 565, 574 (Tex. 1996) (quoting Coker v. Coker, 650 S.W.2d
391, 393 (Tex. 1983)).
11
Lenape, 925 S.W.2d at 574.
12
Id. (emphasis added).
13
Id.
8
Investigation (96-1832). Not only was this the only “procedure”
pending at the time the Agreement was drafted and signed but it was
also the only “procedure” undertaken involving Zavala; the
Proactive Investigation, which led to Zavala’s criminal arrest and
ultimate exoneration by the grand jury, did not result directly in
the filing of administrative charges against him. The term
“settlement” can only refer to the Agreement, in which Zavala ——
in return for his retention by the City as a member of its force ——
accepted the City’s proposed administrative sanctions, gave up his
right to appeal that suspension, and signed the Agreement, which
contains the non-disclosure provision.
The phrase “investigation of case no. 96-1832" is equally
straightforward. IAD conducted two investigations of Zavala, one
by the Proactive Division under case number 96PA052 and the other
by the Reactive Division under case number 96-1832. The Proactive
Investigation (96PA052) was conducted, a report was filed, criminal
charges were sought but rejected by the grand jury, and the
Proactive Investigation was terminated, all before the Reactive
Investigation was ever commenced. The Reactive Investigation was
assigned a case number different from the number assigned to the
erstwhile Proactive Investigation, was performed by a different
division of IAD, and all evidence was placed in a separate file.14
14
The fact that IAD’s Reactive Division transferred the
majority of the contents of the Proactive case file into the
Reactive file for purposes of its investigation is immaterial to
the subject issue. The City’s contentions to the contrary
9
When the City eventually brought its administrative disciplinary
procedure against Zavala, it did so under case number 96-1832, the
same (and only) number referenced in the non-disclosure provision.
In sum, these investigations are temporally distinct; they sought
different ends; they were performed by distinct entities within
IAD; and they were conducted under different case numbers. To
paraphrase Justice Scalia’s observation about statutory
interpretation in Oncale v. Sundowner Offshore Services, Inc., “it
is ultimately the provisions of [the contract] rather than the
principal concerns of [the parties] by which we are governed.”15
No matter how hard we might strain, we cannot read the non-
disclosure provision, as does the City and as did the district
court, to encompass both the Reactive Investigation (case no. 96-
1832) and the Proactive Investigation (case no. 96PA052). We do
not perceive the presence of any ambiguity regarding which
investigation is included within the non-disclosure provision’s
scope. That provision does not broadly prohibit Zavala from
disclosing any information whatsoever regarding IAD’s
investigations of his conduct but instead expressly and
restrictively addresses only the Reactive Investigation, making
neither explicit nor implicit reference to the Proactive
Investigation or information it produced. When drafting the
notwithstanding, this file transfer in no way blurs the clear
distinction between the two investigations.
15
523 U.S. 75, 79 (1998).
10
Agreement, the City was fully aware that two separate and distinct
investigations of Zavala, bearing two different case numbers, had
been undertaken; yet the City chose not to address or even refer to
the Proactive Investigation in the Agreement. It is never for us
to save a party from the consequences of its own drafting errors ——
if errors they be.
When the meaning of a contract is clear on its face, we do not
act as mindreaders, second-guessing that plain meaning or straining
to discern the “subjective” intentions of the parties. If the City
had intended something other than is conveyed by the plain wording
of the non-disclosure provision —— i.e., that Zavala be prohibited
from disclosing any information regarding anything other than that
which is expressly listed in the non-disclosure provision —— it was
free to draft the Agreement using terms that would accomplish such
intentions, then try to convince Zavala to sign it. Because it did
not, however, we conclude that Zavala is free to use as evidence in
his suit against the City any and all information gathered by IAD
pursuant to its Proactive Investigation of Zavala in case number
96PA052. That such information may have been transferred by IAD
from the file of one investigation to that of another does not
immunize anything taken from the Proactive Investigation file, all
of which shall be subject to discovery by Zavala.
III. Conclusion
The non-disclosure provision of the Confidential Last Chance
11
Agreement does not prohibit Zavala from disclosing information
regarding IAD’s investigation no. 96PA052 —— the proactive “sting”
operation that lead to his allegedly wrongful arrest and therefore
stands as the predicate for this suit. Because the district court
erroneously concluded that this information is unavailable to
Zavala in pursuing his suit and granted the City’s motion for
summary judgment, we reverse that decision and remand for further
proceedings consistent with this opinion. In doing so, we neither
express nor imply an opinion regarding the substance of Zavala’s
claims. We do, however, stress that the City must make available
to Zavala any and all evidence in its possession regarding its
Proactive Investigation, regardless of whether that evidence
remains in the file for investigation number 96PA052 or was later
transferred to the file for investigation number 96-1832 or
elsewhere.16 Given the delays in the timely disposition of this
case that have resulted from the district court’s twice
improvidently granted summary judgment to the City, we direct that
further proceedings in this matter be handled on an expedited
basis, culminating sooner rather than later in a timely trial on
the merits.
REVERSED and REMANDED.
16
As to any material that the City may contend must remain
undisclosed to protect innocent persons or otherwise maintain
needed confidentiality, Zavala, if he so chooses, can have the
district court examine such data in camera and perform such
balancing tests and other determinations as may be appropriate to
disclosure or non-disclosure.
12
13