Davis v. McKinney

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 21, 2008

No. 07-20184 Charles R. Fulbruge III
Clerk

CYNTHIA M. DAVIS

Plaintiff - Appellee
v.

MICHAEL McKINNEY, M.D., Being Sued Individually and In His Official
Capacity; and CHARLES G. CHAFFIN, Being Sued Individually and In His
Official Capacity,

Defendants-Appellants

Appeal from the United States District Court
for the Southern District of Texas

Before DAVIS, STEWART and OWEN, Circuit Judges.
W. EUGENE DAVIS, Circuit Judge:
Defendants Michael McKinney and Charles Chaffin bring this
interlocutory appeal challenging the denial of their summary judgment motion
seeking dismissal based on qualified immunity from plaintiff Cynthia Davis’ §
1983 suit for retaliatory discharge in violation of the First Amendment. For the
reasons set forth below, we affirm in part, reverse in part and remand to the
district court for further proceedings.
 No. 07-20184

I.
Davis filed this suit against the above named defendants and the several
arms of the University of Texas (“UT”) System. Prior to December 2003, Davis
was the IS Audit Manager at the UT Health Science Center in Houston, Texas
(“UTHSC-H”). As IS Audit Manager, Davis’ job duties included overseeing
computer-related audits and creating audit summaries and reports. Defendant
McKinney is the Senior Executive Vice-President and Chief Operating officer of
UTHSC-H. Defendant Chaffin is the UT System’s Director of Audits and
System-wide Compliance Officer.
In June 2003, Davis learned that the UT System was considering
restructuring certain aspects of the UTHSC-H Internal Audit department and
adding an Assistant Director position. The position was officially announced in
late June. Davis told Sharon Corum, the director of the UTHSC-H Internal
Audit Department and her direct supervisor, that she would like the position.
Thereafter, Corum sought and received permission from human resources and
Dr. James Willerson (“Willerson”), UTHSC-H President, to waive the normal
requirement that a search committee be used to find applicants for the job.
In August 2003, David Healey (“Healey”), UTHSC-H Vice President for
Facilities Planning, approached the Internal Audit department and requested
an audit of his department’s computer systems because he suspected that
employees were viewing pornography on work computers. Davis, with the
assistance of the IT Security department, investigated the computers in the
Facilities department. An expanded UTHSC-H wide investigation began in late
August. The investigation revealed that several computers had accessed
pornographic material and that certain employees had intentionally accessed
pornography. A log of internet activity was developed to establish probable
cause for confiscating computers at the request of Tex Martin, an inspector with

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the UT System Office of the Director of Police. Martin provided the information
to McKinney.
In late August 2003, Davis met with McKinney, Martin and Arline Staller.
At the meeting, Davis presented evidence of 300 or more employees at UTHSC-H
who were accessing pornography. McKinney authorized Davis to confiscate
computers from employees if she had a clear indication that the access was
intentional. McKinney expressed an intent to terminate the employees who had
intentionally accessed the offending material and told Davis to schedule a
meeting with him on September 2, 2003 to discuss the investigation.
After the meeting, Davis engaged IT Security and Information Service
departments for assistance in confiscating computers from UT personnel.
Eleven computers were identified that were believed to have intentionally
accessed pornography. After further investigation, evidence in ten of the eleven
computers strongly indicated that pornography had been intentionally accessed,
including some material that Davis believed to be child pornography.
Davis attempted to meet with McKinney on September 2, 2003, as she had
been directed, but McKinney was unavailable and never responded to Davis’
request to contact her. That same day, Davis received a call from Mike Jimenez,
UTHSC-H Human Resources Manager, asking Davis to return several of the
confiscated computers to physicians. Davis alleges that she heard that
McKinney wished to terminate the investigation, even though her analysis of the
confiscated computers was not complete.
In response to Jimenez’s request, Davis and the rest of the investigation
team worked to copy the hard drives of the confiscated computers so they could
be returned. Directory listings from the computers were provided to Human
Resources. Davis noted that all of the users of the confiscated computers had
signed acceptable use policy forms detailing the restrictions and permissible uses
of the internet on work computers.

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Davis continued the investigation and claims that she provided McKinney
with lists of physicians whose computers contained pornography and included
descriptions of the material that had been accessed. Davis also continued to ask
McKinney to meet with her but he avoided any such meeting. She concluded
that McKinney and others in upper management were turning a blind eye to the
investigation. UTHSC-H physicians perceived the investigation as an intrusion
into their privacy. Davis claims that several employees’ supervisors chastised
her and that a physician sent a demeaning letter about her to McKinney. Davis
also heard that McKinney was accusing her of botching the investigation.
Corum told her that the Internal Audit department was receiving the brunt of
employees’ disdain toward the investigation.
Around September 9, 2003, Davis asked Corum to be taken off the
investigation because she felt it created a hostile work environment and the
requirement that she review repugnant pornographic material denigrated her
as a woman. Davis felt that she was receiving “heat” from other employees and
that management was unresponsive to the findings of the inquiry.
On September 11, 2003, Davis applied for the newly created Assistant
Director position for UTHSC-H’s Internal Audit department. Around the same
time, she sought assistance from the Employee Assistance Program to cope with
the stress of dealing with the pornography and receiving no support in the
investigation from UTHSC-H or the UT System. Davis also contacted the EEOC
about discriminatory behavior of UT’s upper management.
Davis claims that shortly thereafter her work responsibilities were
reduced to mundane tasks. She heard from Corum that upper management,
particularly Chaffin, were pressuring Corum to terminate Davis. Davis also
claims that she heard that McKinney was threatening adverse action against the
Quality Assurance Review team, which Davis had joined years earlier on
Chaffin’s recommendation, if Davis was not terminated.

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On October 12, 2003, Davis wrote a letter to Willerson, UTHSC-H
President, accusing UTHSC-H and UT System upper management of several
unethical and allegedly illegal activities (the “Complaint Letter”). A complete
copy of the Complaint Letter is attached to this opinion as an Appendix. Davis
sent copies of the letter to Corum and Mark Yudof, the UT System Chancellor.
The Complaint Letter alleged that upper management had a pattern of sweeping
pornography investigations under the rug and not terminating or disciplining
offending employees. In the Complaint Letter, Davis detailed the most recent
investigation and complained that McKinney had not taken corrective action.
She also outlined a pattern of treating certain employees, white men, physicians
and faculty members more leniently than black employees. Davis asserted that
in the course of the investigation she, a female, under the direction of males, had
been required to view horrific and deviant pornography that men had been
viewing at work, and then men in supervisory positions excused the behavior.
Davis also stated that as a result of the investigation, her reputation and
credibility had suffered, even though she was doing her job.
The Complaint Letter also alleged that the president was creating an
excessive number of highly paid upper management positions to the detriment
of the division’s budget, demonstrating a pattern of favoritism towards white
men and persons with political influence. Davis stated that she viewed
Willerson’s failure to address the issues brought to him as a dereliction of his
duties to the university, its students, employees, patients and Texas taxpayers.
Near the end of the Complaint Letter, Davis wrote that because she was
no longer confident that the UT System could investigate itself, she had
contacted the Federal Bureau of Investigation concerning possible child
pornography on eight computers and the EEOC about discriminatory practices.1

1
The record does not reveal precisely when Davis contacted these agencies or what she
told them. We can infer from the record that she relayed to the FBI her suspicion that federal

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Willerson responded by outlining his response to the most recent
pornography investigation. Other issues were not addressed.
In November 2003, Davis emailed Corum inquiring about the status of her
application for the Assistant Director position. Corum had previously indicated
to her that Davis was the most likely candidate to be selected for the position
because she was the most qualified. In response to Davis’ inquiry, Corum
advised her that McKinney had frozen the position and it would not be filled.
Davis contends that this action was taken in retaliation for her Complaint Letter
and related reports to the FBI and EEOC. McKinney asserts that he froze the
position because he was considering outsourcing the entire internal audit
function. He also alleges that he and Corum met in September and determined
that if Davis were promoted to Assistant Director, she would still have to
participate in pornography investigations after her request to be relieved from
those duties.
In December 2003, feeling that her termination was imminent, Davis
resigned from UTHSC-H. Davis had been diagnosed with depression and felt
that her workplace conditions had grown so deplorable that she had been
constructively discharged.
In February 2004, the FBI concluded its review of the hard drives of the
ten confiscated computers and found no child pornography.
Davis filed suit in May 2005 against McKinney, individually and in his
official capacity, and Chaffin, individually and in his official capacity.2 Davis
alleges that McKinney and Chaffin violated her civil rights, pursuant to the

laws were being violated by the presence of child pornography on certain seized computers and
that she relayed to the EEOC the charge that UTHSC-H was discriminating against women
and African-Americans in its imposition of sanctions for violations of the University’s internet
use policy.
2
Davis also named the UT System, UT Board of Regents and UTHSC-H as defendants.
The UT entity defendants were dismissed by the district court in October 2005.

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Fourteenth Amendment and § 1983, by retaliating against her for exercising her
First Amendment free speech rights in her Complaint Letter and related
communications to the FBI and EEOC. Davis contends that the defendants
retaliated against her by failing to promote her and thereafter constructively
discharging her from her position at UTHSC-H by subjecting her to a hostile
work environment.
McKinney and Davis filed a motion for summary judgment arguing that
the Complaint Letter was speech made pursuant to Davis’ official work duties
and therefore not afforded First Amendment protections. They also argued that
they are entitled to qualified immunity from all claims asserted against them in
their individual capacities because there is no evidence that they violated Davis’
constitutional rights and their actions were objectively reasonable. The district
court denied the motion. The district court found that the Complaint Letter
“while constituting ‘mixed speech,’ predominantly addresses matters of public
concern, rather than private concern, and that Plaintiff wrote the letter as a
citizen, rather than an employee.” Accordingly, Davis’ speech was protected
under the First Amendment. On the issue of qualified immunity, the district
court found that Davis had raised a genuine issue of material fact regarding
whether she was fired (or constructively discharged) for writing the Complaint
Letter. In addition, the district court found that the defendants’ actions
regarding Davis’ employment at UTHSC-H were not objectively reasonable and
that they were not entitled to qualified immunity. The defendants appeal.
II.
This court does not ordinarily have jurisdiction to review a denial of a
motion for summary judgment. However, the district court’s order denying
qualified immunity is immediately appealable to the extent it turns on a
question of law. Gobert v. Caldwell, 463 F.3d 339, 344 (5th Cir. 2006). This panel
thus has jurisdiction only to determine whether McKinney and Chaffin are

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entitled to qualified immunity as a matter of law, viewing all record evidence in
the light most favorable to the plaintiff Davis. Kinney v. Weaver, 367 F.3d 337,
348 (5th Cir. 2004)(en banc).
To determine whether an official is entitled to qualified immunity,
the court asks (1) whether the plaintiff has alleged a violation of a
constitutional right, and (2) whether the defendant’s conduct was
objectively reasonable in light of the clearly established law at the
time of the incident.

Connelly v. Tex. Dep’t of Crim. Justice, 484 F.3d 343, 346 (5th Cir. 2007). The
threshold question in this case, whether Davis’s speech in the Complaint Letter
is protected under the First Amendment, is a question of law, which we have
jurisdiction to address. Connick v. Myers, 103 S.Ct. 1684, 1691 n.7 (1983).
III.
The defendants argue that the district court erred in denying their motion
for summary judgment in which they asserted that they were entitled to
qualified immunity from Davis’ claims. The defendants argue first that they did
not violate Davis’ First Amendment rights since her Complaint Letter related
to her job duties as an internal auditor at UTHSC-H and did not comment on
matters of public concern.
The First Amendment protects a public employee’s right, in certain
circumstances, to speak as a citizen on matters of public concern. Pickering v.
Board of Educ., 391 U.S. 563, 568 (1968). Prior to the Supreme Court’s most
recent pronouncement on the First Amendment rights of public employees in
Garcetti v. Ceballos, 126 S.Ct. 1951 (2006), this court applied
two tests, sometimes in conjunction with one another, to determine
whether speech relates to a public concern; both tests derive from
Connick v. Myers, 461 U.S. 138, 75 L.Ed.2d 708, 103 S.Ct. 1684
(1983). The first is the content-form-context test: “whether an
employee’s speech addresses a matter of public concern must be
determined by the content, form, and context of a given statement,

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as revealed by the whole court record.” Id. at 147-48; see also
Tompkins v. Vickers, 26 F.3d 603, 606 (5th Cir. 1994).
The second “shorthand” test is the citizen-employee test:
“when a public employee speaks not as a citizen on matters of public
concern, but instead as an employee upon matters of only of
personal interest,” the employee’s speech falls outside the
parameters of speech involving matters of public concern. Connick,
461 U.S. at 147 (emphasis added); see also Schultea v. Wood, 27
F.3d 1112, 1120 (5th Cir. 1994), superseded on other grounds by, 47
F.3d 1427 (5th Cir. 1995) (en banc). The citizen-employee test can
yield indeterminate results because “the existence of an element of
personal interest on the part of an employee in the speech does not
prevent finding that the speech as a whole raises issues of public
concern.” Dodds, 933 F.2d at 273. Thus, “in cases involving mixed
speech, we are bound to consider the Connick factors of content,
context, and form, and determine whether the speech is public or
private based on these factors.” Teague, 179 F.3d at 382.

Kennedy v. Tangipahoa Parish Library Bd .of Control, 224 F.3d 359, 366 (5th Cir.
2000).
Garcetti changed this analysis in ways not yet fully determined. In
Garcetti, a supervising district attorney, Ceballos, reviewed a case in which
defense counsel claimed the affidavit police used to obtain a critical search
warrant was inaccurate. After determining that the affidavit made serious
misrepresentations, Ceballos relayed that finding to his supervisors via a
disposition memo recommending dismissal of the criminal case. There was no
question in Garcetti that the plaintiff in that case wrote the disposition memo
pursuant to his employment duties. 126 S.Ct. at 1961. Ceballos was required
as part of his job as a prosecutor to write memos such as the one in question to
assess the validity of searches and make recommendations related to the
exercise of prosecutorial discretion. The Supreme Court concluded that the First
Amendment did not protect Ceballos’ expressions in the disposition memo which
were written pursuant to his official duties as an employee. Id. at 1960.

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Because of Ceballos’ concession that he wrote the memo pursuant to his
duties as a prosecutor, the Supreme Court did not have occasion in that case to
“articulate a comprehensive framework for defining the scope of an employee’s
duties in cases where there is room for serious debate.” Id. at 1961. However,
the case provides some guidance, indicating that a formal job description is not
dispositive, id., nor is the fact that the speech relates tangentially to the subject
matter of one’s employment. Id. at 1959. The case also lists examples of
prototypical protected speech by public employees, namely “mak[ing] a public
statement, discuss[ing] politics with a coworker, writ[ing] a letter to newspapers
or legislators, or otherwise speak[ing] as a citizen.” Spiegla v. Hull, 481 F.3d
961, 967 (7th Cir. 2007), citing Garcetti. at 1960, 1961.
While all implications of Garcetti have not been developed at this point,
it is clear that Garcetti added a threshold layer to our previous analysis.
Williams, 480 F.3d at 692. “Under Garcetti, we must shift our focus from the
content of the speech to the role the speaker occupied when he said it.” Id. The
Seventh Circuit has framed the new test in a manner we find persuasive, as
follows:
Garcetti . . . holds that before asking whether the subject-matter of
particular speech is a topic of public concern, the court must decide
whether the plaintiff was speaking "as a citizen" or as part of her
public job. Only when government penalizes speech that a plaintiff
utters "as a citizen" must the court consider the balance of public
and private interests, along with the other questions posed by
Pickering and its successors, such as Waters v. Churchill, 511 U.S.
661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994); Connick v. Myers,
461 U.S. 138, 103 S. Ct. 1684, 75 L. Ed. 2d 708 (1983); and Givhan
v. Western Line Consolidated School District, 439 U.S. 410, 99 S. Ct.
693, 58 L. Ed. 2d 619 (1979).

Mills v. City of Evansville, 452 F.3d 646, 647-48 (7th Cir. 2006). An education
law treatise describes the inquiry similarly as follows:

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The inquiry whether the employee's speech is constitutionally
protected involves three considerations. First it must be determined
whether the employee's speech is pursuant to his or her official
duties. If it is, then the speech is not protected by the First
Amendment. Second, if the speech is not pursuant to official duties,
then it must be determined whether the speech is on a matter of
public concern. Third, if the speech is on a matter of public concern,
the Pickering test must be applied to balance the employee's
interest in expressing such a concern with the employer's interest
in promoting the efficiency of the public services it performs through
its employees. (Footnotes and citations omitted).

Ronna Greff Schneider, 1 Education Law: First Amendment, Due Process and
Discrimination Litigation § 2:20 (West 2007).
Accordingly, our first task is to determine whether Davis’ speech was part
of her official duties, that is whether she spoke as a citizen or as part of her
public job. Because Garcetti is a recent decision, lower courts have had limited
opportunity to interpret it. This circuit has had occasion to apply Garcetti in one
case, Williams v. Dallas Indep. Sch. Dist., 480 F.3d 689 (5th Cir. 2007). In that
case, this court applied the Garcetti analysis to speech that was not necessarily
required by the plaintiff’s job duties, but was closely related to his job duties.
Williams, an Athletic Director, wrote a memo to his school principal and office
manager requesting information about the use of funds collected at athletic
events, including negative remarks about how the school allocated those funds.
After reviewing pre- and post-Garcetti caselaw, we concluded that the cases
“distinguish between speech that is ‘the kind of activity engaged in by citizens
who do not work for the government and activities undertaken in the course of
performing one’s job.’” Id. at 693 (internal citation to Garcetti omitted).
Activities undertaken in the course of performing one’s job are activities
pursuant to official duties and not entitled to First Amendment protection. Id.
We found that Williams wrote the memo in the course of performing his job
because he needed account information from the principal and office manager

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so that he could perform his duties as Athletic Director, namely, taking students
to tournaments and paying their entry fees. Id. at 694. His memo reflected his
special knowledge about the situation gained as athletic director. In addition,
his comment that the principal had established “a network of friends and house
rules,” for use of these funds related to his concerns about his athletic program.
Cases from other circuits are consistent in holding that when a public
employee raises complaints or concerns up the chain of command at his
workplace about his job duties, that speech is undertaken in the course of
performing his job. Spiegla, 481 F. 3d at 966 (Correction officer’s reports to
assistant superintendent of the prison in which she worked regarding a possible
security lapse which occurred at her assigned position at the main gate was part
of her official responsibility as a correction officer to keep the prison secure.);
Battle v. Bd. of Regents, 468 F.3d 755, 761 (11th Cir. 2006)(University employee’s
internal report which alleged improprieties in her supervisor’s handling of
federal financial aid funds was made pursuant to her official employment
responsibilities as a financial aid counselor.); Foraker v. Chaffinch, 501 F.3d 231
(3d Cir. 2007)(Instructors at Delaware State Police Firearms Training Unit were
acting within their duties as employees by bringing health and safety concerns
about the range up the chain of command and to the state auditor.)3
If however a public employee takes his job concerns to persons outside the
work place in addition to raising them up the chain of command at his
workplace, then those external communications are ordinarily not made as an
employee, but as a citizen. Freitag v. Ayers, 468 F.3d 528 (9th Cir. 2006). In
Freitag, the plaintiff was a corrections officer at the Pelican Bay State Prison in

3
We recognize that it is not dispositive that a public employee’s statements are made
internally. Williams, 480 F.3d at 694, n.1., citing Garcetti and Givhan v. Western Line
Consold Sch. Dist., 439 U.S. 410 (1979). However, as illustrated above, the caselaw is
unanimous in holding that employee’s communications that relate to his own job function up
the chain of command, at least within his own department or division, fall within his official
duties and are not entitled to First Amendment protection.

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California. She encountered a pervasive practice of male inmate exhibitionist
behavior directed at female officers, including herself personally, over a period
of several months. Id. at 532. Freitag’s complaint alleged that she was
retaliated against and ultimately terminated due to her repeated complaints
about the problem. Id. The court listed six examples of Freitag’s speech on the
subject: (a) reports to agents of the California Department of Corrections within
the Pelican Bay State Prison, formally and informally; (b) documenting Pelican
Bay State Prison’s responses or failure to respond to her reports of sexually
hostile inmate conduct; (c) informing the Director of the California Department
of Corrections of the prison’s failure to respond; (d) informing a State Senator of
the inmate conduct and the prison’s failure to respond; (e) reporting the same to
the Office of the Inspector General; and (f) cooperating with the investigation
conducted by the Office of the Inspector General. Id. at 544. As to items (d), (e)
and (f), the Ninth Circuit found that Freitag was acting as a citizen when
making those communications. “Her right to complain both to an elected public
official and to an independent state agency is guaranteed to any citizen in a
democratic society regardless of his status as a public employee.” Id. at 545. “It
was certainly not part of her official tasks to complain to the Senator or the IG
about the state’s failure to perform its duties properly.” Id. In contrast, her
communications within the prison internally, in (a) and (b) above, were pursuant
to her official duties as a correction officer and thus not in her capacity as a
citizen. With regard to item (c), the Ninth Circuit was “unsure whether prison
guards are expected to air complaints regarding the conditions in their prisons
all the way up to the Director of the CDCR at the state capitol in Sacramento”
and remanded the case to allow the district court to make that determination.
Id. at 546.
The communications in this case require a similar analysis - that we look
at Davis’ role both when she sent the Complaint Letter and when she

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communicated with the FBI and EEOC. As in Freitag, the Complaint Letter
was sent not just up Davis’ chain of command to Dr. Willerson, the President of
UTHSC-H, where Davis was employed, and to Sharon Corum, her immediate
supervisor. Davis also sent copies to Mark Yudof, Chancellor of the UT System.
Davis also complained to external, unrelated entities. She contacted the FBI
concerning the possible child pornography she found and the EEOC on the
discriminatory practices.
With respect to the content of the Complaint Letter, some of it clearly
relates to Davis’ job as an internal auditor, other parts do not. Davis’ Complaint
Letter has two main topics. The first topic concerns complaints about what she
considered the inadequate response to her investigation of employees accessing
pornography on university computers, including claims that the university
ignored possible criminal activity and engaged in racial discrimination in its
imposition of sanctions for computer use violations. The second topic is Davis’
complaints about the number and pay of executive vice presidents and vice
presidents at UTHSC-H, raising issues of political favoritism and fiscal
mismanagement, and the effect of these practices on employee morale.
In “mixed” speech cases, Freitag supports analyzing separately each aspect
of a communication with multiple topics and recipients. Pre -Garcetti case law
also supports analyzing mixed speech in a single communication by dividing the
communication by topic and applying First Amendment analysis to each topic
separately. In Connick v. Myers, an assistant district attorney unhappy with a
proposed transfer to another department, circulated a survey to “fellow staff
members concerning office transfer policy, office morale, the need for a grievance
committee, the level of confidence in supervisors, and whether employees felt
pressured to work in political campaigns.” 461 U.S. at 141. The Court viewed
most of the topics in the survey as private matters, “mere extensions of Myers’
dispute over her transfer to another section of the criminal court.” Id. at 148.

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The Court treated differently, however, the aspect of the survey that questioned
whether the staff felt pressured to work in political campaigns on behalf of office
supported candidates. The Court concluded that this speech raised a matter of
public concern. Id. At 149. Although Connick dealt with distinguishing matters
of public concern from matters of private concern and not whether the speech
was made as part of an employee’s official duties, which is the issue in this case,
we believe that it can be read as support for considering separately discrete
topics within a single communication for purposes of applying post-Garcetti First
Amendment analysis.
Dividing Davis’ speech, both in the Complaint Letter and in her other
communications, into components as the Ninth Circuit did in Freitag discloses
the following components:
(a) concerns about the inadequate response to Davis’ pornography
investigation for the internal audit department directed to Dr. Willerson,
president of UTHSC-H, and to Sharon Corum, Davis’ immediate
supervisor;
(b) concerns about the excessive number and pay of vice presidents directed
to Dr. Willerson and Sharon Corum;
(c) concerns about the inadequate response to Davis’ pornography
investigation for the internal audit department directed to Mark Yudof,
Chancellor of the UT System;
(d) concerns about the excessive number and pay of vice presidents directed
to Mark Yudof, Chancellor of the UT System;
(e) concerns about the presence of possible child pornography on UTHSC-H
computers directed to the FBI;
(f) concerns about racial discrimination at UTHSC-H directed to the EEOC.
The district court did not discuss the individual components of Davis’ speech
listed above or consider whether each category of speech was related to plaintiff’s

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job duties. Instead, it treated the Complaint Letter and other communications
as a whole. However, because the question of whether a communication is made
as an employee or as a citizen is a question of law, we proceed with the analysis.
Item (a) above was clearly made as an employee. Although Davis had
requested that she be removed from further pornography investigations, the
letter related to her work within the internal audit department and to her core
job description, “to oversee computer-related audits and create audit summaries
and reports.” The communication was sent to her immediate supervisor, Sharon
Corum, and the President of her division of the UT System, in other words, up
the chain of command seeking redress for what she felt was an inadequate
response to the findings of her investigation.
In contrast, item (b), the portion of her letter dealing with the number of
vice presidents and related issues, was not written as part of her job duties as
a internal auditor. The topic does not relate to computer use or the internal
audit department specifically. There was no financial component to Davis’
position. Accordingly, that communication was made as a citizen.
Item (c), the Complaint Letter to the Chancellor of the UT System, is more
difficult. It is comparable to Freitag’s complaints regarding conditions at the
prison to the state director of prisons. Speech related to an employee’s job duties
that is directed within the employee’s chain of command is not protected. The
question is how high within an organization an employee’s reporting
responsibilities extend. Fortunately, our review of the record reveals that
Chancellor Yudof was indisputably within Davis’ chain of reporting
responsibilities on internal audit issues. The UT System is made up of nine
academic universities and six health institutions. The UTHSC-H division for
which Davis worked is one of the six health institutions under the UT System.
The record includes the following information about reporting within the UT

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System and by the audit departments in particular. Defendant Chaffin stated
in an affidavit
To provide for the independence of the Internal Auditor function,
auditors at the U.T. System component institutions do not report to
U.T. System but report directly to the administration of their
component institution as provided by the University of Texas
System Business Procedures Memorandum 18.

Memorandum 18 states that in “Large Institutions” like the UTHSC-H with
freestanding internal audit departments, the audit departments report to the
president of the institution and meet with their institution’s internal audit
committee at least quarterly. Reports from the audit committee are submitted
to the Executive Vice Chancellor for Academic or Health Affairs and the System
Audit Director. Audit reports with significant audit findings and
recommendations are summarized for the Audit, Compliance, and Management
Review Committee. The chancellor attends meetings of the Audit, Compliance,
and Management Review Committee and provides direct communication
between the System Audit Director, the committees and senior management.
Memorandum 18 states that the chancellor is “Responsible for insuring the
implementation of appropriate audit procedures for the system.” Davis viewed
Chancellor Yudof as being in the chain of her reporting responsibilities as an
internal auditor. In her deposition, she was asked if she had ever gone over the
head of Dr. Willerson, president of her division, to report that McKinney was
trying to stop her investigation. Davis answered that she had not. However,
when asked to whom she would have gone, she answered, “I would have gone to
Mr. Yudof.” Accordingly, we conclude that Davis’ communication of her
complaints about the handling of internal audit investigations at UTHSC-H to
the Chancellor of the UT System was made as an employee.

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In contrast, her complaints to Chancellor Yudof relating to the number of
vice presidents and related concerns, item (d), have nothing to do with her job
function as an internal auditor and therefore were made as a citizen.
Items (e) and (f), the reports to the FBI and EEOC, were not made as an
employee. Defendant Chaffin testified at his deposition that it was not within
an auditor’s job function to communicate with outside police authorities or other
agencies in an investigation. Davis’ supervisor Corum testified that it was
highly unusual for an auditor to involve any outside authority with respect to
matters occurring at UTHSC-H and she could not recall it ever happening in her
12 years with the division. This communication is comparable to Freitag’s
communication to a State Senator and the State Inspector General.
Those aspects of Davis’ communications that were made as a citizen
qualify for First Amendment protection if they raise a matter of public concern.
The district court found that “the confluence of factors surrounding Plaintiff’s
Complaint Letter militate in favor of a finding that the letter, while constituting
‘mixed speech,’ predominantly addresses matters of public concern, rather than
private concern.” Although the defendants mention both aspects of the test in
their brief to this court - citizen vs. employee and public vs. private concern -
their argument focuses solely on whether Davis’ speech in the Complaint Letter
was made as an employee rather than as a citizen - not whether it raised
matters of public concern. Other than stating that the Complaint Letter does
not raise matters of public concern, the Defendants do not brief the issue
separately and do not discuss at all whether communications to the FBI or
EEOC raise matters of public concern. On remand, the district court after
briefing by the parties should consider whether the aspects of Davis’ speech we
have concluded are not job related raise issues of public concern. To the extent
any category of speech raises matters of public concern, the district court should

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apply the Pickering balancing test to such speech and deny or grant summary
judgment based on its conclusions.
IV.
Both McKinney and Chaffin argue that the district court erred in denying
them qualified immunity from all claims asserted against them in their
individual capacities because their actions were objectively reasonable.
Evaluating a claim for qualified immunity is a two-step inquiry. First, a court
must decide whether the plaintiff’s allegations, if true, establish a violation of
a clearly established right. Hare v. City of Corinth, 135 F.3d 320, 325 (5th Cir.
1998)(en banc). Second, if the plaintiff has alleged a violation, the court must
decide whether the conduct was objectively reasonable in light of clearly
established law at the time of the incident. Id. Even if the government official’s
conduct violates a clearly established right, the official is entitled to qualified
immunity if his conduct was objectively reasonable. Id.
McKinney and Chaffin challenge the district court’s conclusions on the
second prong - that their actions were not objectively reasonable. At the time of
the alleged violation of Davis’ free speech rights, both Supreme Court and Fifth
Circuit law clearly proscribed retaliation by a government employer against an
employee for engaging in protected speech. Pickering, 391 U.S. at 568; Connick,
461 U.S. at 146-47; Teague v. City of Flower Mound, 179 F.3d 377, 380-82; Davis
v. Ector County, Tex, 40 F.3d 777, 782 (5th Cir. 1994).
Chaffin argues that he was a UT System employee with no direct
supervisory authority over Davis and her supervisor Corum who were employed
at UTHSC-H. Chaffin also argues that an unexecuted threat of termination is
not an adverse employment action that could support a § 1983 First Amendment
retaliation claim. Davis pled that Chaffin had actual authority over employment
decisions at UTHSC-H, and supported that allegation with deposition testimony
of herself and her supervisor Corum. In addition, Davis alleges constructive, not

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actual, termination, negating Chaffin’s argument about the effect of an
unexecuted threat. The district court found that Davis presented evidence
raising a genuine issue of material fact as to whether Chaffin retaliated against
Davis for the speaking out on the issues presented in the Complaint Letter.
Chaffin’s arguments challenge Davis’ versions of the events, raising questions
of fact which we have no jurisdiction to consider at this time.
McKinney argues that his actions freezing the hiring for the position of
Assistant Director of audit were objectively reasonable because he was
considering outsourcing the entire Audit Department or other reorganization
options. He also argues that this action was objectively reasonable because
Davis asked to be relieved of viewing pornography and reviewing pornography
investigations was part of the job duties of the proposed Assistant Director of
Audit position. Again, these arguments challenge Davis’ version of the facts.
Davis produced evidence that McKinney, who presided over Davis’ pornography
investigation, never viewed the pornography found on the department’s
computers. The district court found that there was a genuine issue of fact with
regard to McKinney’s motivations for freezing the position. As these arguments
raise questions of fact, we have no jurisdiction to consider them at this time.
V.
Accordingly, for the reasons set forth above, we reverse the district court’s
denial of summary judgment in part on the issue of whether Davis’ speech was
entitled to First Amendment protection insofar as it relates to those aspects of
Davis’ speech that were made as an employee, rather than as a citizen. The
district court’s judgment is affirmed in all other respects and this case is
remanded for further proceedings consistent with this opinion.
AFFIRMED in part. REVERSED in part. REMANDED.

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APPENDIX
MEMORANDUM

TO: Dr. Willerson, President
University of Texas Health Science Center at Houston

FROM: Cynthia M. Davis, IT Audit Manager
University of Texas Health Science Center at Houston (UT-Houston)

DATE: October 12, 2003

SUBJECT: UNETHICAL AND POSSIBLE ILLEGAL ACTIVITIES at UT-Houston

[Ms. Davis first describes the requires for her to investigate the use of state computers
to view pornography. She then reviews the procedures she followed, and finally
describes some of her findings. The letter continues as follows:]

The University continues to perpetuate a hostile working environment with its pattern
of not handling pornography..

• Nothing was done in 1999 when a Family Practice physician was
discovered to have child pornography on his computer. No reports were
filed, the AMA was not alerted and the physician was allowed to resign
with no sanctions whatsoever.

• Nothing was done in 2000 when I discovered and reported a faculty
member producing pornographic videos of himself masturbating in his
office and trafficking it on the Internet.

• In 2000, three young, black classified employees were terminated within
weeks that the faculty member was investigated and unsanctioned.

• a highly visible white classified male was not terminated when it was
discovered that he viewed pornography at work.

• in the most recent audit, 10 men were discovered viewing pornography,
eight of them with possible child pornography on the computers, and the
investigation has been stopped with no explanation, even after I told my
superiors much of the information above and my complete disgust with
the University’s approval of such behavior.

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I am unable to perform my job without interference from management. My role is no
longer effective at the University. In the case of [one physician], I received a memo
directed to McKinney by [another physician] attacking me for doing my job. His
excuses for [the first physician] are baseless and I am told that McKinney has
responded to the letter, although I have not been provided a copy.

Once again, executive management has taken no definitive action against employees
who use state resources to view pornography for personal purposes. Since little to
nothing is done, I have been repeatedly subjected to pornographic material that
degrades women and children. This has created a hostile working environment for me
because my efforts go unsupported. Men viewed the pornography, men requested the
investigation, I a female, was the only employee ordered to view the material, and men
excused the behavior of their colleagues.

Once the decision was made to not terminate any of the employees, the focus of
attention was switched from the real problem of employees viewing pornography to the
investigation itself. I personally have been blamed for a “botched” investigation
although procedures were correctly followed and decisions were made by Martin and
McKinney. Neither of these men made any attempt to correct the misperception (and
appear to be propagating it) nor gave me the opportunity to respond to these
allegations.

Despite evidence that child pornography was accessed, the investigation was stopped
with no explanation. I opted out of doing further investigation because the University
forces me to view pornography, has taken no action to remedy the problem, and now
appears to just want to sweep it under the rug.

Research at our own School of Public Health linking pornography to deviant behavior
should increase the desire of the University management to diligently investigate
these cases and take strong action. Management consistently protects the perpetrators
and ignores the rest of those that put their trust in this the University – students and
patients.

The University’s continuing track record of ‘doing nothing” implicitly endorses the use
of state resources for unsavory and possibly illegal activity. The University posts
policies about this kind of behavior but when their colleagues are actually caught
violating the policy they defend them by saying that they weren’t explicitly told not to
view pornography at work. We trust them to educate our future health care
professionals and treat patients, they are outstanding researchers discovering cures
for disease but they don’t know that they shouldn’t view pornography at work?

You should know that I selected only a very small sample of persons that view
pornography at the University, the problem is much greater than 10 people. I have
Internet logs which were run on 9/3/2003 which show a much greater population. You

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should review the material on these computers so you know how horrific this is. Most
material is actual videos of sexual intercourse, some deviant, most of women and
young girls being violated. I gave McKinney the evidence, he ignored it and instead
turned the attention to me as an excuse for not dealing with the real issue which is
terminating employees for regularly viewing pornography.

My reputation has suffered significantly since this investigation, my credibility has
been questioned and my ability to continue to be effective at the University is serious
damaged because I chose to perform my job duty at the direction of UT system and
McKinney. I have even been forced to obtain help from the Employee Assistance
Program (EAP) as a result of all of this. I would have continued to seek help from EAP
but realized I can longer trust the University to protect my rights. I believe the
University would use the emotional problems I was experiencing as a result of this
investigation against me. I am seeking help elsewhere.

It has become quite clear to me that neither you or McKinney take Auditing &
Advisory Services, Legal or Compliance seriously and the “new” management method
is to either promote and pay exorbitant salaries for silence or terminate those that
don’t agree with you. It should be noted that many of the staff and VPs you terminated
were the Chief Legal Officer, Chief Compliance Officer and one-half of the Audit
department. Since McKinney is currently admonishing Auditing for the pornography
investigation, it appears that the remaining Audit department is now being
scrutinized!

It has also been noted that you removed all external members from the Audit
Committee. These actions create the appearance that the University has things to hide
and doesn’t wish to involve outside parties, is not concerned about complying with
laws, regulations and does not feel terribly responsible for protecting taxpayer’s assets.
Ignoring advice from legal, audit and compliance is endangering the reputation of the
University and appears to be ignoring the rights of all employees, students and
patients.

This pattern of behavior is very disturbing. Besides the fact that you appear to
condone male physicians and male employees’ viewing of pornography using state-
owned resources, it appears that you show favoritism towards white men and persons
that can help you politically. The number of executive vice president’s and vice
president’s you have placed at the University is now up to eleven(11). I have looked
into the matter and can’t see what help these appointments provide, other than
political favoritism. Also, I am unable to find another UT component that has close to
this amount of vice presidents. I, among most of the University, don’t understand how
creating executive positions and paying them large sums of money contributes to an
efficient and cost-effective administrative structure for the University. The
appearance that McKinney created his own senior executive position and demands
well in excess of a one-half million dollar salary is revolting. The additional fact is that

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two minorities in the President’s office used to hold executive positions but are now
simply vice presidents. These are the facts and it does not look good.

It is apparent that you have an agenda to fulfill the University’s mission in education,
research and service. What is not apparent is how overpaying executives is
contributing to this mission. It would be extremely helpful if you would provide
performance measures for the executive positions and other positions like [one specific]
position. Perhaps explaining to the rest of the University and tax payers how these
executives contribute to the growth of the University and generate revenue that
exceeds their administrative costs, would further your cause more effectively than
telling us at Management Forum that if we aren’t in sync with your vision we can just
leave. That speech is not only arrogant but extremely demoralizing. It should be no
surprise why our SECC campaign is at an all-time low. This is the true reflection of
how your employees feel about this University.

The view of the University and its current management is extremely negative. My
experience is that your employees have lost faith in the University’s ability to be equal
and just. I believe you have the power to change that view by proving that what you
are doing is ethical and responsible. Perhaps we just don’t understand that it takes
more executive vice presidents to achieve your mission. All we see is layoffs of
classified staff, discriminatory practices, the protection of men viewing pornography
and elevating white men to high paying executive positions.

You have a legal, moral and ethical obligation to the University and the citizens of
Texas. Auditing, Legal and Compliance are here to assist you minimize risk to this
University and even your reputation. Your refusal to address the issues brought to
you, even if they are “about” you is a dereliction of your duties and appears that you
don’t take those obligations seriously.

Our employees, students and patients deserve to work, learn and be treated in a safe
environment. The state of Texas taxpayers deserve to know that the money they give
us is used thoughtfully and honestly. The patients that come to use for care deserve
to know that the treatment we provide is provided by men and women who have high
ethics and would not behave in any way that would endanger their safety. The
taxpayers deserve to know the truth about unethical behavior at the University which
occurs at their expense.

Since I am no longer confident that the University can investigate itself, I have
elevated my concerns to external agencies in the hope that this institution can be
restored to a place of integrity and honor. I have contacted the Federal Bureau of
Investigation (FBI) concerning the possibly child pornography on the eight computers
and I have contacted the Equal Employment Opportunity Commission (EEOC) on the
discriminatory practices. Nothing has happened yet with these agencies except
dialogue, but it is my sincere desire that you work with them to return the University
to a place of integrity, honor, fair treatment of all of its employees, and ethical, moral

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physicians and men who are not endangering women and children because they are
allowed to view pornography using state-owned resources.

I honestly believe that you will alter your behavior and do the right thing because I
think you take a lot of pride in your position and you do believe in the mission of the
University. There are many misconceptions and the appearance of unethical and
illegal activities being sanctioned by you and only you have the power to change that.
I look forward to working with you and these agencies to make the University the best
University in the world and a place to be proud of!

I would like to meet with you and Chancellor Yudof at the earliest opportunity to
explore these issues. Please let me know when we can meet.

Cc: Sharon Corum
Mark Yudof

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